Lot Of Law To Worry About

Once you've figured out which movie you're going to make and you've acquired all the rights to that film property, it's time to start staffing up.You need to cast actors, choose a director (if it's not going to be you), and hire your crew. Hiring and managing employees and independent contractors is one of the trickier legal areas a filmmaker must face.This is because a whole host of laws apply to the employer employee relationship. For instance Services Contracts.A services contract between...

Note On Legalese

We attorneys take a lot of flak for confusing laypeople with our legalese. It can be quite frustrating a business person might make an offer to sell a widget, but a lawyer will sell, convey, transfer, and assign all the rights in and to the widget, in perpetuity. You'd think we were being paid by the word. Quite honestly, some lawyers do use extraneous words. For instance, in this example, the single word sell would probably work just fine. And for most purposes, using clear, simple language in...

About The Author

Currently in private practice with his own firm, Thomas A. Crowell, Esq., counsels clients on a wide range of entertainment law and intellectual property rights issues. Before becoming an attorney, Mr. Crowell was a television producer and the head of business development for one of Japan's premier satellite television news companies, The Science Technology Network. Mr. Crowell managed the company's Development and Acquisitions department and supervised the production of its weekly science news...

After Its Written

Copyright Office. (See Copyright Registration, p. 268.) If you and your partners have decided to form a company, assign the copyright to the company and register the assignment with the U.S. Copyright Office. (See Copyright Recordation,Assignments,and Transfers, p. 110.) 7. Together, develop a strategy for trying to sell or make the screenplay. It is critical to have a collaboration agreement. Without a contract to restrict them, joint authors may license...

Agreement

The production company wants to hire a passionate, creative, and responsible director. Its primary concern is making sure that the director can perform creatively while making sure that the film is made on time and on budget. Consequently, the contract provisions of critical importance to the production company are those which control the production company's ability to oversee the director. Director. The director wants to be sure the production company will not run out of...

And Technicians Directly

If you are hiring these artists directly, or through their loan-out companies, you can create an agreement using the crew member deal points shown earlier in this book. (See Crew Services Agreements, p. 141.) For compposers you'll want to use a separate agreement, based on the deal points as outlined later in this section. (See Commissioned Music, p. 210.) As always, if the production company is employing these artists, you need to comply with all labor and employment laws. (See Appendix D A...

Appendix A

Copyright Office Circular 45, Copyright Registration for Motion Pictures Including Video Recordings, http www.copyright. gov circs circ45.html. 8 U.S. Copyright Office Circular 1,Copyright Office Basics, http www.copyright. gov circs circ1. html wnp 9 See Miller v. Universal Studios, 650 F.2d 1365 (5th Cir. 1981). 10 Hogan v. DC Comics, 48 F.Supp.2d, 298 (S.D.N.Y. Jan 26,1999). 11 See 17 U.S.C 105, (2006). Subject matter of copyright United States Government works Copyright protection...

Assignment and Delegation

This clause lays out the rules by which the parties can substitute new parties into the contract. Example Pudgy Pangolin Productions, Inc. (PPP) has hired Walden Writer to write a screenplay. PPP may want to sell the film property to another production company, Angry Aardvark Associates (AAA). As part of that deal between PPP and AAA, PPP assigns Walden Writer's contract to AAA, according to the terms of the Assignment and Delegation provision of Walden Writer's contract with PPP. Now Walden...

Attorneys

Crowell, Esq. www.thomascrowell.com Attorney Ivan Saperstein, Esq. www.ivansaperstein.com Entertainment attorneys by state from Findlaw.com http lawyers.findlaw.com lawyer practice Entertainment For a state-by-state list of Volunteer Lawyers for the Arts and other Pro Bono legal organizations serving artists, see http www.dwij. org matrix vla_list.html or http negativland.com lawyers.html

Attorneys Fees

Most attorneys either charge by the hour or as a percentage of the final film budget. It is not unusual for an entertainment attorney to charge 300 an hour or 2 5 of the film's budget. Remember, the more information you give them and the more homework you are willing to do, the cheaper it will be for you in the long run. After the initial consultation, which is usually free, you will probably be billed by your attorney every time they talk to you over the phone and many attorneys charge in...

Audiovisual Works

Copyright law considers your film or video to be an audiovisual work. 'Audiovisual works' are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.2 Animation, in whatever format

Business and Finance

Starting a production company and financing a movie are critical first steps to any successful production. Why do I need a company Can't I just make a movie (See Setting Up the Production Company, p. 25.) What kind of business should I set up What's the difference between a corporation and an LLC (See Types of Business Entities, p. 26.) Do I need a lawyer An accountant (SeeYour Professional Team, p. 33.) What kind of insurance do I need when I make a movie (See Insurance, p. 37.) What are the...

Business Issues

Union rules may affect your negotiating range WGA Member. If the writer is a member of the WGA and the producer is a signatory, many of the deal terms will be controlled by the WGA Minimum Basic Agreement, such as minimums on how much a writer can be paid, the criteria for credits, and rights that will remain with the writer after he or she has sold the screenplay. Non-WGA Member. If the producer is not a WGA signatory, she will not be bound by the WGA rules and is free to contract with a...

Business Issues Distributors Expenses

Because distributors may deduct their expenses prior to paying the production company, the expenses that a distributor may be allowed to deduct should be closely defined. Care should be taken to expressly limit the distribution company's ability to include any overhead within the recoupable expenses. When negotiating with the distributor, you should argue that because the distributor is taking a distribution fee, it is from that fee the distributor should pay for its ordinary costs of doing...

Business Issues Finances And Costs

Whether or not a filmmaker can demand that a production company sign a Submission Release prior to the filmmaker's disclosure depends upon the filmmaker's leverage. Generally, neither a Submission Release nor an NDA requires one party to pay the other as part of that contract. However, in the case of any implied or express contract that the filmmaker may try to create during the meeting, the production company should agree to compensate the filmmaker a reasonable amount if it ends up using the...

Categories of Fair

General categories of fair use include news reporting, criticism, comment, teaching (including multiple copies for classroom use), scholarship, or research. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities courts have regarded as fair use Quotation of excerpts in a review or criticism for purposes of illustration or comment Quotation of short passages in a scholarly or technical work, for illustration or clarification...

Caution No Fraud Or Misrepresentations Allowed

Many courts will try to view the depiction release in a light most favorable to the person whose depiction you are using. If your subject can argue that he was mislead or as to how you would use the footage of him or defrauded into signing the release, the court may void your release. If you are planning to use the depiction in a way that a subject might object to, make sure to include language in the release which describes that use. Example Production Company may use your depiction in any...

Ceaseand Desist Letters and Lawsuits

Actually, before a lawsuit is filed against you, you will probably receive a cease and desist letter from your adversary's attorney. This is a letter that tells you (in your adversary's opinion) what you have done wrong and what rights you have violated. The letter also lets you know what you can do to rectify the problem. Example Let's say that you are being accused of infringing the copyright in a painting that you have used as a background prop in a scene in...

Chapter

Supp. 62 (SDNY 1996). 2 The Copyright Website accessed 9 2 2006 4 17 U.S.C. 120 (2006).Scope of exclusive rights in architectural works (a) Pictorial representations permitted. The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in...

Checklist Elements Of A Service Agreement

In general, services contracts will have clauses which deal with the following essential issues Duties of both the production company and the employee independent contractor Payment amount, frequency, kind (fixed, contingent, deferred, bonus) Term of service days expected to work be available Releases right of publicity, defamation, Work-for-Hire Assignment of intellectual property rights Union Non-Union status if Union, which union contract governs the agreement Screen credit and other billing...

Choice of Law Forum

This clause determines which state's laws apply to the contract, and in which state the parties will bring any lawsuit or arbitration. If a lawsuit is thought of as a battle, the jurisdiction is its battleground. Jurisdiction controls the location and kind of court that will hear a lawsuit. The laws can, and do, differ from state to state. Whether you sue in New York, as opposed to Los Angeles, may make the difference between winning and losing. The choice of law or forum clause in the contract...

Commissioned Music

Sometimes a filmmaker needs a soundtrack or song composed especially for her movie. In other words, she needs to commission some music from a composer. Independent producers typically work with composers who own their own recording studios. Thanks to the proliferation of computer-based music composition, recording, and editing software, finding a composer with a studio should not be that hard. From a legal perspective, a composer studio owner makes things easy as well instead of dealing with...

Completion Bonds

A completion bond is like an insurance policy that guarantees the film will be made on time and on budget. The completion bond is granted by the completion guarantor for a fee, which is often around 6 of the film's budget. Prior to issuing a completion bond, the completion guarantor reviews elements of the film package including the shooting script, the production budget, the shooting schedule, the chain of title, resumes of key cast and crew personnel, production insurance packages, critical...

Contents

Disclaimer Dedication Acknowledgments About the Author PART I. OVERVIEW OF THE POCKET LAWYER Contract and Intellectual Property 11 1. COPYRIGHT AND INTELLECTUAL PROPERTY 13 What Is a Copyright 13 Exclusive Rights Under Copyright 14 The Film Property 14 2. ISSUES IN FILM CONTRACTING 17 Deal Points 17 Who Are the Parties 18 What Are You Getting 18 What Are You Giving in Exchange for What You're Getting 19 What Rights Do You Have or Are You Giving Up 19 What Promises Are Being Made 20 What...

Copyright

Copyright law protects artistic works such as films, books, paintings, etc. If I own the copyright to my film script what rights do I have (See Appendix A Copyright Rights, p. 250.) How long does my copyright last (See Appendix A Copyright Duration, p. 268.) Does copyright protect every part of my film (See Appendix A What is Not Protected by US Copyright Law p. 253.) How do I hire a cast or crew member and ensure that I keep the copyright to their work (See Appendix A Work Made for Hire, p....

Copyright And Intellectual Property

All film deals are built upon the foundation of intellectual property. Film contracts are used to protect and or effectively transfer such intellectual property rights as copyrights, trademarks, rights of publicity, or rights in ideas. The term intellectual property refers to a collection of laws that protect products of the mind or personality, such as copyright, trademarks, rights in ideas, rights of publicity, and privacy rights. The laws that protect patents and trade secrets are also part...

Copyright in Selection and Arrangement

When we think of what can be copyrighted, we often think of types of expression, like paintings, sculptures, films, screenplays, etc. In addition to these works, a particularly creative arrangement or selection of materials may also be copyrighted, despite the fact that what is arranged or selected may be in the public domain. (See Public Domain, p. 252). A collage made from scraps of 19th-century advertisements A creative sequence of yoga poses A selection of words, for example terms of venery...

Copyright Intellectual Property Public Domain

The United States Copyright Office www.copyright.gov The United States Patent and Trademark Office www.uspto.gov Search the copyright office website for works registered or renewed since 1978, here www.copyright.gov records Copyright Registration Short Form PA www.copyright.gov forms formpai.pdf Copyright Registration Standard Form PA www.copyright.gov forms formpas.pdf Copyright Office Circular 45 Copyright Registration for Motion Pictures Including Video Recordings. www.copyright.gov circs...

Copyright Notice And Disclaimer

In addition, your credits should always feature a copyright notice and disclaimer that says something similar to this Copyright YEAR NAME OF PRODUCTION COMPANY . AH Rights Reserved. This motion picture is protected under the laws of the United States and other countries. Any unauthorized duplication, distribution, or exhibition is strictly prohibited and may result in both civil and criminal penalties.The persons, characters, and events, depicted in this film are fictitious. Any similarity to...

Copyright Registration

Registration is the process of filing your copyright information with the govern-ment.You should register the copyright to both your script and to your motion picture. You can hire a service to register the copyright for you or you can do it yourself. You register a copyright by depositing a copy of your work with the U.S. Copyright Office. Registration consists of filling out and submitting a copyright registration form along with a sample of the work you're registering, and the correct...

Copyright Rights

For filmmakers and other authors, copyright law gives the copyright owner the exclusive right to take his or her work and Make derivative works based upon the original work Anyone who, without the copyright owner's permission, performs any of the above actions, may be infringing the copyright. (See Copyright Infringement, p. 269.)

Copyright Searches And Permissions

Frequently producers will need to find out copyright information concerning a particular work. For instance, you may want to make a movie from somebody's copyrighted novel or use a copyrighted sculpture as art direction for a scene. Or you may need to provide an insurer, financier, or distributor with a copyright search report. In short, at some point (hopefully, early on) the producer or one of his staff, will need to conduct or commission a copyright search.The process of researching a...

Creating Acquiring and Managing the Film Property

IDEA RIGHTS (PROTECTING YOUR PITCHES AND AVOIDING IDEA THEFT) 51 Nondisclosure Agreements and Submission Releases 51 Deal Points Non-Disclosure Agreement (NDA) 55 Law Protecting Ideas and the Novelty Requirement 56 Business Issues Finances and Costs 57 Negotiation Tips and Tricks 57 Step by Step Protecting an Idea 58 Follow-Up 58 Writing the Screenplay by Yourself (Sole Authorship) 61 Writing Collaboration (Writing Partners and Joint Authorship) 63 Deal Points 65 The Writers Guild of America...

Deciding On A Business Organization

The organizational form that a business relationship takes should be determined in advance.Although a writers' collaboration agreement focuses on the screenplay and defines how each writer will act with respect to the script, its creation and exploitation however, there are numerous business aspects it does not cover (e.g., taxation, voting, etc.). As a result,it may be advisable for writing collaborators to also form a business. (See Setting Up the Production Company, p. 25.) LLCs. Given its...

Defamation Defined

There are two forms of defamation, slander and libel. Slander is the spoken form of defamation, and libel is a written, televised, or otherwise recorded form. To be able to sue for defamation, the following elements must be present A false and defamatory statement concerning another. An unprivileged publication of that statement to a third party. Fault amounting to at least negligence on the part of the publisher (fault amounting to actual malice in the case of a public figure). (See Appendix A...

Defamation in Narrative Films

Although most people associate motion picture defamation with documentaries, narrative films can create problems for filmmakers as well. It may seem surprising that a work of fiction can give rise to a defamation claim after all, unlike in a documentary, the author is not trying to say that the story is real.Trouble usually occurs when a filmmaker fictionalizes an actual person's life or creates a character that closely resembles an actual person.When faced with such a claim, a court may...

Defenses To Defamation

There are a number of possible defenses to a charge of defamation. Truth. The most basic defense to defamation is truth. No matter how scandalous or injurious to a person's reputation a statement may be, it will not be considered defamatory if it is true. Example Freddy Filmmaker shoots a documentary film titled Prostitutes and the Policemen Who Love Them, which features interviews with prostitutes naming the cops with whom they have had sexual congress. Sergeant Lou Scivious, named in the...

Defined Terms

Defined terms are terms that are defined in the contract for the purpose of understanding the contract. They are always capitalized and defined in a definitions section of a contract or defined immediately after their first use. Be careful here Once a term is a defined term, it takes on the defined meaning, which may not necessarily be the meaning in the dictionary. For example, if the contract says 'Rutabaga' shall mean any motion picture sequel derived from the Screenplay, any use of the word...

Depiction Releases

Although there is generally a very limited right to privacy on public streets, there are several legal claims producers need to concern themselves with, namely misappropriation of the right of publicity, defamation, and invasion of privacy. Right of Publicity. The right of publicity protects a person's rights to commercial exploitation of his or her likeness (e.g., voice,image, catch phrases).This generally isn't an issue in feature films, however producers shooting television commercials a...

Employee Responsibilities

If you are an employer (e.g., a production company) hiring an employee, your responsibilities include paperwork. You must have the employee complete the following forms Form I-9.This is an immigration status form required by the US Bureau of Citizenship. You can find the form here http www.uscis.gov graphics formsfee forms files i-9.pdf. IRS Form W-4 This is a federal tax withholdings form.You can find the form here IRS Form SS-4 the form for the production company to apply for an employer...

Engagement

This clause occurs in every services contract. A services contract is a contract in which somebody is hired or commissioned to do something, such as perform in a film or write a screenplay. The engagement clause lists the specific duties required of the party being hired and how those duties must be accomplished. You may want to draft the engagement clause in general terms, such as Ari Flecks agrees to provide the services of camera operator and such other services as are customarily provided...

Entertainment Unions and Societies

Writers Guild of America www.wga.org WGA Screen Credits Policy The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada www.iatse-intl.org The National Association of Broadcast Employees and Technicians-Communications Workers of America www.nabetcwa.org For info on SAG low-budget contracts www.sagindie.org contracts2.html Casting Society of America www.castingsociety.com

Equity

As opposed to a loan, which obligates the borrower to return the money loaned (plus interest), an equity investment represents an ownership interest in the company. Examples of this kind of financing include shares in a corporation or membership interests in a limited liability company (LLC). If the company fails to make money, so do the investors, but if the company makes money, the investors share in the profits. From the investor's point of view, an equity investment has tremendous upside...

Examples of Fair

Two examples may illustrate how a court will analyze whether an unauthorized use is fair or infringement. Scenario 1 Daniel, a television commercial director, makes a commercial for a local car dealership. He uses a film clip from Star Wars showing Darth Vader swinging his light saber and cutting down Obi-Wan Kenobi. Over this, he puts a voiceover saying we slash prices and kill the competition. The film clip is used without permission, and the commercial airs. Lucasfilm Ltd. sues for copyright...

Exclusive Rights Under Copyright

For filmmakers, copyright law gives the copyright owner the exclusive right to take his or her work and Zeus Pictures, Inc. owns the copyright to the film, Wombats in Love Only Zeus Pictures, or someone with that company's permission, can authorize Dupe Co. to press DVDs. Once the film prints for Wombats in Love are made, only Zeus Pictures, or someone with that company's permission, can authorize Dingo Distributors, LLC to license the picture for domestic theatrical distribution. However, once...

Exemptions from Registration

Registering securities in a film is expensive, time consuming, and usually not necessary for low-budget films. However, if you're not registering your security, you must exempt your security from registration. Filmmakers typically take advantage of one of the registration exemptions offered by SEC Regulation D Rule 504 offering. Under Rule 504, production companies can offer to sell 1 million of securities within a 1-year period. There is no limit to the amount of investors who can be brought...

Exercise Of Option

This clause details how the producer may exercise the option and purchase the script pursuant to the purchase agreement. A notice sent via certified mail is a common device for exercising options. This clause should reference the Purchase Agreement, requiring that the writer sign the Purchase Agreement when the producer exercises the option. Make sure to give the producer the power of attorney to execute the Purchase Agreement on the writer's behalf if the writer fails to exercise the Purchase...

Express And Implied Contracts

As a filmmaker, you'll be faced with two types of contract.The two flavors are the express contract and the implied contract. The second is the one that really causes unexpected problems. Wanda Writer negotiates an option purchase agreement with Penelope Producer for Wanda's script Beige, the New Black. Because the major deal terms are agreed upon, the option purchase agreement is an express contract. Penelope Producer asks Garry the Grip what his day rate is. Garry tells her 350. Penelope then...

Federal And State Labor And Employment Laws An Overview

During pre-production you will be hiring your cast and crew. This means that in addition to the service contracts you negotiate with them, you also must comply with state and federal employment laws. Federal and state employment and labor laws govern discrimination, wages, workplace safety, child labor, and workers' compensation disability unemployment insurance. Under these laws, an employee will be treated differently by the law than an independent contractor.These issues must be addressed...

Federal Test

The Internal Revenue Service (IRS) looks at three primary factors to determine whether a worker is an independent contractor or an employee Behavioral Control. If the production company has the right to direct and control how the worker accomplishes his or her job, the worker is most likely an employee. The more instructions a worker is given on how the work should be done, what steps the worker must perform, and what tools he or she must use, the more likely it will be that the worker is an...

Film And Television Legal Contracts

Dina Appleton & Daniel Yankelevits, Hollywood Dealmaking Negotiating Talent Agreements (Allworth Press 2002). Stephen F. Breimer, Esq., The Screenwriter's Legal Guide (Allworth Press 1999). John W. Cones, The Feature Film Distribution Deal (Southern Illinois University Press 1997). Mark Litwak, Contracts for the Film and Television Industry (Silman-James Press 1998). Mark Litwak, Dealmaking in the Film and Television Industry (Silman-James Press 2002).

Film Finance

Cones, 43 Ways to Finance Your Feature Film (Southern Illinois University Press 1995). John W. Cones, Film Finance and Distribution A Dictionary of Terms (Silman-James Press 1992). Bill Daniels et al., Movie Money Understanding Hollywood's Creative Accounting Practices (Silman-James Press 1998). John Durie et al., Marketing and Selling Your Film Around the World (Silman-James Press 2000). John J. Lee, Jr., The Producer's Business Handbook (Focal Press 2000). Louise Levison, Filmmakers...

Finances and Costs

Remember, the producer may need to negotiate several kinds of payments with the writer An Option Payment. This is for the option itself often 10 of the purchase price of the script. Option Extension Payments. This is typically more money than the option payment itself. The Purchase Price Payment. This is payment for the sale of the script, due when the option is exercised. The purchase price is usually broken down into A Fixed Compensation Payment. This is the fee which is paid regardless of...

First Amendment And The Right Of Publicity

The First Amendment greatly limits the extent to which the right of publicity can control areas outside of commercial exploitation of an image. Movies, television, some art, news, literature, and educational uses are usually not considered commercial use of a person's right of publicity. Even TV commercials and other advertisements promoting movies and television shows do not infringe the rights of publicity of the actors who perform in those movies and television shows being advertised. That...

Followup

Once the filmmaker has pitched his or her idea, the next step is for the production company to either offer the filmmaker a deal or to pass on the project that is, turn the filmmaker down. If the movie studio has offered to pick up the project, the kind of deals it will offer will depend upon the nature of the project and the reputation of the filmmaker. The production company may want to commission the filmmaker to write a screenplay. (See Hiring a Screenwriter, p. 82.) The production company...

Goals And Deals

When a filmmaker pitches to a production company, each side wants a certain amount of legal protection. Here's a snapshot of what each side wants The filmmaker wants to ensure that he can pitch his idea without fear of it being used by the production company without his permission. Ideally, he will have the production company sign an NDA. Barring that, he wants to avoid signing the production company's Submission Release.As a further step, the filmmaker might try to enter into an implied or...

Gross Irresponsibility

In determining gross irresponsibility, courts look to whether the producer Followed sound journalistic practices in preparing the allegedly defamatory piece. Followed normal procedures, including editorial review of the piece. Had any reason to doubt the accuracy of the source relied upon and thus a duty to make further inquiry to verify the information. Could have easily verified the truth.55

Hidden Cameras And Microphones

In addition to the privacy laws listed above, filmmakers can run into problems when they use hidden cameras and microphones. Federal law prohibits using microphones and cameras to eavesdrop on a conversation, unless the filmmaker has the consent of at least one of the parties to that conversation.43 Example Polly Producer wants to catch Gus Grimes in the act of talking to his mob connection,Tony Turpentine. She hides a small video camera in a flower vase and puts it on the restaurant table of...

Historical Facts and Theories

Despite the fact that the author may have invested a good deal of time and money researching a subject, historical facts and theories are also unprotectible. It may seem unfair, but just because you've spent time and effort laboriously researching a topic does not mean that you can copyright that research.9 However, you certainly can copyright the text which contains that writing. As a result, you can't use copyright law to stop someone from reading your well-researched book or script and...

Holdback Provisions

Reserved rights are often subject to holdback provisions. A holdback provision requires a copyright or other rights owner to refrain from licensing certain rights for a limited period of time. For example, as mentioned earlier, while production companies typically try to acquire the greatest number and scope of rights from a screenwriter, the screenwriter very often reserves certain rights for himself or herself, such as the right to turn the screenplay into a play for the theater. To ensure...

How Does The Money Get From A Movie Theater To The Producer Via A Net Distribution Deal

There are several different kinds of money pipelines. One of the more common is structured as follows MOVIE THEATER (EXHIBITOR) TAKES ITS CUT 2. Exhibitors (movie theaters) give between 35 and 50 of ticket sales to distributor (but not candy, popcorn, and other concessions, etc.). The monies actually given to the distributor may be lower than the contractually obligated amount due to settlement transactions, which are discounts given to the exhibitor by the distributor. 3. Distributor's Gross...

How to Find the Right Attorney

The best way to select the right attorney is through references from other produc-ers.You can also contact your state's bar association for help finding an entertainment attorney in your area. Findlaw.com, a great resource for legal cases and articles, has a listing of entertainment attorneys by state at http lawyers.findlaw.com lawyer practice Entertainment. Once you've located an entertainment attorney, sit down with him or her and discuss your project. Don't be afraid to interview the...

How to Use This Book

This book is organized roughly chronologically, according to the life cycle of a film. That being said, it is also intended to be a flexible resource, allowing the filmmaker to access information in a variety of ways The book is designed for easy access for the filmmaker who needs to jump right in and find an answer without having to first read the book cover to cover. To help these nonlinear readers, I have repeated some key information from section to section, particularly in the sections...

Ideas Themes Concepts

Copyright law does not protect ideas. Let me state that again COPYRIGHT LAW DOES NOT PROTECT IDEAS This is, perhaps, one of the hardest concepts for many artists to grasp. Copyright only protects an idea's expression, not the idea or concept itself. One of the problems has always been how to determine where an idea stops and copyrightable expression begins.As one court pointed out The line lies somewhere between the author's idea and the precise form in which he wrote it down . . . protection...

Independent Contractors and Employees California

As is true in most states, there is no simple definition for who is an independent contractor in California. In determining a worker's status the California Division of Labor Standards Enforcement (DLSE) applies the economic realities test, which is a multifactor test.2 The most important factor in the test is whether the hiring company has the right to control as to the work done and the manner and means in which it is per-formed.3 The more control a worker has, the more likely that he or she...

Info

BLOCKS CONTRACT AND INTELLECTUAL PROPERTY Two key legal areas every filmmaker must become acquainted with are intellectual property law and contract law. These are the building blocks of every agreement used in motion picture and video production. You will get the most benefit if you first read the following section before diving into the rest of the book. A more detailed discussion of intellectual property and contract law can be found at the back of the book in Appendix A A Filmmaker's Guide...

Insurance Coverage

Production companies need to take out entertainment insurance policies covering the following General Liability. This policy pays third parties for damage caused by the production company. For instance, if you destroy a stove while shooting on location in a restaurant, general liability insurance should pay this claim. Workers' Compensation. This is a legal requirement if you are employing people. It covers work-related injuries to employees. Along with general liability insurance, this should...

Introduction

This book is intended to provide you with a grasp of many of the key legal issues you will be facing during the course of making your independent films. It can help you understand and negotiate crucial production contracts, steer you through the choppy waters of handling actors and their agents, and navigate your production past the perils of copyright infringement and other lawsuits. Most importantly, it can help you protect that most valuable of properties the rights to your film. When I was...

Intrusion Upon Seclusion

Intrusion upon Seclusion39 is, perhaps, what is typically thought of when we think of invasion of privacy. For a filmmaker to be liable for intrusion upon seclusion, all of the following elements must be present The filmmaker intrudes, physically or otherwise, upon the privacy, solitude, or personal affairs of his subject. The intrusion must be of a kind that is objectionable to a reasonable person. The intrusion must occur where the subject has a reasonable expectation of privacy. Example...

Is Everybody Who Contributes a Joint Author

Not everyone who contributes to a movie is a joint author. In a case involving the authorship of the film Malcolm X the 9th circuit held that a technical consultant was not a joint author, even though he helped to rewrite, to make more authentic the script and the movie. The court stressed that for a movie (in the absence of a contract), authorship was generally limited to the above-the-line cast and crew in short, those who mastermind the movie The Author is the person to whom the work owes...

Its in the

Hiring Post-Production Artists and Technicians Directly 201 Artists and Technicians Provided by Post-Production Facilities 201 Major Deal Points Music Licensing Agreement 207 Stock and Royalty-Free Music 210 Commissioned Music 210 Major Deal Points Composer's Services Agreement 211 20. FILM CLIPS AND STOCK FOOTAGE 217 Stock Footage Company 218 Major Deal Points The Film Clip License Agreement 219 The National Archives 221 21. CREDITS & COPYRIGHT NOTICE 223 Copyright Notice and Disclaimer 223...

Joint Venture

A joint venture is a special type of partnership, one formed for a particular and limited purpose. Producers often use joint ventures to combine the forces of two existing production companies for a particular project, like co-producing a film, writing a screenplay, or creating a television pilot. To have a joint venture, the writers must have (1) a common business purpose, like the writing and exploitation of a screenplay (2) shared profits and losses (3) an express or implied contract to work...

Labor and Employment

California laws regarding a worker's status the California Independent Contractor FAQ at http www.dir.ca. gov dlse FAQ_IndependentContractor.html For more on how the IRS determines a worker's status, see its brochure Contractor or Employee at For information on an employer's tax responsibilities, see Employer's Supplemental Tax Guide at

Law Joint Authors and Joint Works

Joint Authors have certain rights under copyright law if the authors want to change these rights, they need to do so by a contract between them, such as a Writers' Collaboration Agreement. When two or more authors work together to create a screenplay, copyright law may consider them to be joint authors.To become a joint author, each co-author must 1. Contribute copyrightable elements to the joint work. For example, a would-be joint author would have to contribute more than just ideas, because...

Law Library Appendices AD The Law Library

APPENDIX A A FILMMAKER'S GUIDE TO INTELLECTUAL PROPERTY LAW 247 3. Violation of Privacy Rights 273 APPENDIX B A FILMMAKER'S GUIDE TO CONTRACT LAW 283 APPENDIX C THE CLAUSE COMPANION 291 APPENDIX D A FILMMAKER'S GUIDE TO LABOR AND EMPLOYMENT LAW 307 1. Employee or Independent Contractor 307 2. Employee Responsibilities 312 3. Child Labor Laws California and New York 313 BIBLIOGRAPHY AND RESOURCES 319 NOTES 323

Law Optioning and Selling the Screenplay

All screenplay sales, assignments, and transfers MUST be in writing to effectively transfer the copyright. Both sides in the transaction need to be especially careful that everybody understands which rights are granted and which rights are reserved. What is being purchased is the copyright to the screenplay. A producer must make sure that all of the screenplay's authors and contributors sign off on the deal. When you negotiate the exclusive right to buy (the Option), you must also negotiate...

Law Protecting Ideas And The Novelty Requirement

American law is very wary about protecting ideas. In order to receive any protection at all, even by contract, an idea must be novel, that is, new and unique. If there is a contract between the producer and the production company, the producer's idea only needs to be novel to the production company or other party who is hearing the idea for the first time. Example If the producer had pitched the same idea first to another production company, which had agreed to keep the idea confidential, the...

Law The Right Rights

One of the biggest business issues involved in literary acquisition agreements is making sure that you have all of the rights you need to fully exploit the motion picture that you intend to create.You have to be extremely cautious and understand which rights are available, which rights are reserved by the owner, and which rights have been granted by the owner to other rights holders. Remember, a producer typically acquires the following rights with regards to particular literary property The...

License Agreement

The rights holder, typically a studio, will issue a nonexclusive license to the filmmaker for the rights to use a particular film clip in the filmmaker's movie. Production Company. The production company should seek the broadest possible grant of rights in perpetuity. Additionally, the production company should ask for assurances from the studio rights holder that all of the rights needed to use the clip are being granted. Studio Rights Holder. The studio rights holder may attempt to limit its...

License That Destroys the Value of the Work

A joint author is under a duty not to destroy the joint work. Some, but not all, courts have taken the view that a license substantially reducing the value of a joint work is a destruction of the work. In the case of the motion picture industry, one could make an argument that any license of the motion picture rights to a screenplay destroys its value to be licensed for other pictures no studio wants to make the exact same picture another studio is making at the same time. But even if one joint...

Life Story Rights

If the movie or project you're planning to shoot is based upon someone's life story, you should obtain that person's life story rights, through a Life Rights Consent Agreement. Although no one has the exclusive right to tell his or her own life story, there is a veritable catalog of claims that a subject can file against the filmmaker who shoots an unauthorized biography, unflattering documentary, or fictionalized account of him or her. The frustrating thing is that film subjects who sue often...

Limitation of Liability

Some business entities, like LLCs, Corporations, and LLPs allow their members to limit their liability to the amount that they are invested in the company.The members of such companies are not personally liable for the debts or other legal claims against the company. So, for example, if an LLC or corporation is sued for breach of contract, the most that each member or shareholder can lose is the amount of his or her investment in that company. If the company is bankrupt and has no more assets,...

Limited Liability Company LLC

The limited liability company, also known as an LLC, has become the business entity of choice for most small film production companies.This is because it has the limited liability advantages of the corporation with the flexibility of a partnership. The LLC is owned by its members. The LLC may be managed directly by the members or by managers whom they appoint. Like the shareholders of a corporation, the members enjoy limited liability status. State filing is required to form a LLC. Taxation is...

Limited Partnership LP

A limited partnership is a partnership in which some of its partners may enjoy liability protections. The business is owned by two classes of partners general partners and limited partners. Only the general partners are personally liable for all the debts of the business. For this reason, there must at least one general partner. Only general partners may obligate the business (authorize the business to enter into contracts, authorize loans, settle lawsuits, hire and fire, etc.). Limited...

Major Deal Points Artwork License

The production company wants to be able to use a work of art in its motion picture. Grantor. The person or company that owns the rights to the artwork. It could be the artist, the artist's estate, or any party to whom the artist has assigned the copyright to the art. If the artist is well-known, the production company will probably not be able to get the right to reproduce and sell the art itself, apart from its depiction in the motion picture. REPRESENTATIONS AND...

Major Deal Points Crews Services Agreement

Because the production company will be hiring many crew members, it wants a contract it can use over and over with a minimum amount of redrafting and negotiation. If you need a crew member to perform duties additional to those customarily performed by such person, make sure to detail the exact services the crew member will be providing. Example If you just write camera operator, most crew members would not assume that job also included picking up the rest of the crew in the...

Major Deal Points The Purchase Agreement Rights Granted

This section outlines the specific rights granted to the producer. In short, the producer needs the right to make a motion picture or pictures in whatever medium, to be distributed in any manner, throughout the universe, in perpetuity. Remember, copyright can be divided up in a number of different ways, so the rights must be defined in terms of their Medium (e.g., motion picture, television) Geography (e.g., the Universe, North America) Motion Picture Rights. At a minimum, the producer needs...

Mandatory Trust Fund

In addition to the aforementioned restrictions and requirements, a parent or guardian and every employer must comply with the Coogan Law, named for the actor Jackie Coogan. Coogan was a child performer who shot to stardom in 1921 at the age of 7, staring opposite Charlie Chaplin in The Kid. He had earned four million dollars by the age of 13. However, in 1935, when he demanded his money from his mother and stepfather (who had been his manager), they refused. He filed suit, and the court held...

Matters Of Public Concern Gross Irresponsibility Test

Thanks to the First Amendment, matters of public concern are given greater leeway. In New York, if the allegedly defamatory material is of public concern, the allegedly defamed person will have to show that a television news reporter acted with gross irresponsibility with regard to the accuracy of his or her reporting. Said one court Under this 'gross irresponsibility' standard, if an article is 'arguably within the sphere of legitimate public concern' or 'reasonably related to matters...

New York

In New York, as in California, the presumption is that a worker is an employee, but this presumption is rebuttable. New York takes a different approach from California to the common law tests of supervision, direction, and control. The New York Department of Labor provides guidelines for determining worker status in the performing arts.The guidelines list indicators of independence that would make a worker an independent contractor and indicators of employment that make a worker an employee....

New York Mandatory Trust Funds

New York has its own Coogan Law, called the Child Performer Education and Trust Act of2003,29 which is nearly identical to the California law. New York will recognize a Coogan Trust Account set up in California as sufficient compliance with New York's Child Performer Education and Trust Act. However, there are some distinctions between the two laws. Within 15 days of the start of employment, a parent or guardian must establish a child performer's trust account unless one that complies with New...

No Obligation To Produce

While the producer has the right to produce the film using the literary property, he or she needs to be sure that he is not obligated to produce the film. The producer needs to be able to exploit the owner's name, likeness, biography, and so forth, in connection with the marketing of the film. Conversely, the producer will want to prohibit the owner from releasing any publicity about the motion picture without the producer's approval.

Offer and Acceptance

Example Freddy Filmmaker says he'll give Sammy Cinematographer 2,500 a week to shoot his film. That's an offer. In an e-mail, Sammy writes back I'll do it for 3,000 a week. That's NOT an acceptance It's actually a counteroffer. Freddy does not respond to Sammy, but hires Shelby Shooter instead. Sammy shows up on set and says,I accept your offer of 2,500 a week, we now have a contract Freddy rightly points out that Sammy's response I'll do it for 3,000 a week was a counteroffer, which Freddy did...

Pay For The Film Out Of Pocket

This is fairly straightforward cash in some stocks and bonds, sell something to raise money, allocate a portion of your weekly paycheck, or dip into your savings account in other words, use money you already have to make the film.This is the most expensive, most risky, but potentially the most lucrative route it also has the advantage of being the least troublesome from a legal point of view. Of course, most people don't have hundreds of thousands of dollars lying around with which to fund...

Penalties for Infringement

Courts have a plethora of punishments in store for the copyright infringer Damages and Profits28 a court may order an infringer to pay either The copyright owner's actual damages and any additional profits of the infringer, or Statutory damages in a sum of not less than 750 or more than 30,000 as the court considers just. For willful infringement the court, in its discretion, may increase the award of statutory damages to a sum of not more than 150,000. Costs and Attorneys Fees.29 The court in...

Permits Required to Employ a Minor in New York

As is the case in California, New York requires a child performer to obtain a Child Performer Employment Permit.27 You can find the form at LS560 20combined.pdf. A parent or guardian must obtain a Child Performer Employment permit form from the State Department of Labor before employment begins (the permit is valid for 6 months and must be renewed 30 days before it expires). Before employing a child in New York, an employer must obtain a Certificate of Eligibility to Employ Child...

Public Disclosure Of Private Facts

A producer can be sued if he or she publishes private facts about the subject. For a filmmaker to be liable for public disclosure of private facts40, all of the following elements must be present The filmmaker shoots a film which divulges private facts about the private life of the subject. The filmmaker exhibits or shows the film to others (this is referred to as publication, even though it is a movie). The publication of these facts would be highly offensive to a reasonable person. There is...

Publication of Defamatory Statement

For a statement to defame someone, it must be published to a third party. Published does not mean printed in a book, nor does published have the same meaning as it does under copyright law (the distribution of copies of a work to the public by sale). For a defamatory statement to be published, it must be seen, heard, read, and so forth, by someone other than the person being defamed. Example Franco Filmmaker videotapes himself saying Barney Banker steals from the cash drawer at the First...

Quiet on the

EXTRAS AND DEPICTION RELEASES 171 Depiction Releases 171 Caution - No Fraud or Misrepresentations Allowed 175 Why You Need a Location Release 177 Getting Permission to Use a Location 179 Major Deal Points Location Agreement 181 17. WHAT'S ON THE SET 185 On-Set IP Infringement 185 Copyrights on the Set 187 Major Deal Points Artwork License 190 E& O and Other Contractual Obligations 196

Registering the Copyright to Your Work

The moment your script is finished, register it with the United States Copyright Office. Don't be fooled into thinking that mailing a copy of your script to yourself or depositing it with the Writer's Guild is the same as registration. It's not. Only registration with the federal government will allow you to take full advantage of copyright protection. Besides, it's only 45. For a guide to registering your screenplay, see Copyright Registration, p. 268, or download Circular 45 Copyright...