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...

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...

Attorneys

One of the first things you should do is to establish a relationship with a good entertainment attorney, preferably one with experience setting up businesses. Although forming a company is not brain surgery, creating the company's internal documents can be tricky and is a task better left for your attorney. After all, you should be worrying about developing a screenplay, not how to draft the operating agreement provision on tax treatment of membership interests. It is important to bring in your...

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 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...

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...

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...

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 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 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...

Credits

How credit is determined and what form it takes is an integral part of every film contract. This clause usually details when credit must be given for instance, is the production company required to credit the party in just the film and its copies or must the party's credit also appear in all paid advertisements for the film This clause may also specify in what order the credit must appear and how large the credit must be in relation to the other credits. Filmmakers should make sure that this...

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...

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

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 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...

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...

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...

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...

Indemnification

Indemnification is the duty to compensate another person for their loss. It's kind of like saying,Don't worry I've got your back.Typically rights holders and licensors (e.g., writers, filmmakers, production companies) indemnify anybody who is licensing rights from them (called licensees).That way if a licensee is sued over something they have been indemnified against, the licensor must pay the cost of defending the licensee and any damages the licensee is ordered to pay A licensee will...

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...

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...

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...

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 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

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...

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...

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...

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...

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...

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...

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...

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...

Republication

If a defamatory statement is published again after its initial publication, it is considered republished. Generally, republishers may be sued for defamation as well. Filmmakers must be very cautious here An interview in which a subject defames someone on-camera may create republication liability when it is broadcast, when it is screened in theaters, and when it is reproduced on a DVD. Because the filmmaker has indemnified the broadcaster, exhibitor, and DVD manufacturer, those parties' legal...

Respondeat Superior

Keep in mind that an employer, such as a production company or producer, is generally legally responsible for the actions of its employees performed during the scope of their duties.This is the Respondeat Superior doctrine. This means that if your employee gets into a car accident while picking up cast and crew members, your company is responsible for paying the damages from any lawsuit that may arise. Similarly, if your art director infringes somebody's copyright in creating a painting for the...

Rights Granted

This is one of the most critical clauses in any film contract because it does the work of transferring or licensing the intellectual property rights needed to create and protect the film property. (See The Film Property, p. 14.) For instance, in a distribution contract the filmmaker will assign the right to distribute the film (which is a copyright right) to the distributor. This clause occurs in virtually every single motion picture contract. For contracts with performers, crew, and creative...

Sole Authorship

From a legal perspective, writing a screenplay by yourself is the easiest scenario. Assuming the screenplay is wholly original with you, meaning you haven't adapted it from someone else's work, written it with anyone else, and you haven't been hired to write it, the question of ownership of the screenplay's copyright is simple. You own it. You will still need to register the copyright to your screenplay. (See Copyright Registration, p. 268.) Additionally, you'll need to assign the screenplay...

Statements Of or Concerning Another

To sue somebody for libel, a plaintiff must prove that the libelous statement was aimed at him or her.The test, known as the of or concerning another test, looks to whether a reasonable person would assume the statement was made about or concerned the plaintiff. Example A documentary film alleges that Provincetown pharmacist Robert Martin poisoned all of his customers by filling prescriptions while he was drunk. If the allegations were false, a Provincetown pharmacist named Robert Martin could...

Step by Step Hiring Writers

If your production company is considering working with a WGA writer, that company must become a WGA signatory. (See The Writers Guild of America, p. 69.) 2. If the screenplay will be an adaptation of another work, permission to use that work must be obtained. (See Screenplay Adaptations, p. 88.) 3. The production company must comply with the labor and employment laws when hiring any writer, regardless of whether they are in the WGA. (See Appendix D A Filmmaker's Guide to Labor and Employment...

Stock And Royaltyfree Music

Rather than dealing with the headache and cost of licensing music from publishers and recording companies, many producers choose to purchase stock and royalty-free music.Although technically the producers are still licensing this music, the procedure is far less involved. Stock and royalty-free music is music designed especially to be used in connection with audiovisual programs. Most stock music companies also license sound effects. Many companies offer a one-time fee purchase whereby a...

The Audience for This Book

This book is aimed at the independent filmmaker who wants to make money by selling his or her film.You, the reader, may be an industry professional, a recent film school graduate, or an amateur who wants to break into the biz. Regardless of who you are, if you want a chance at selling your film you must have artistic passion and you must be prepared to treat your film project as a business. The book's premise is simple you can't sell something you don't own, and unless you take care of the...

The Company as Owner of the Film

Regardless of which business entity the producers ultimately form, the filmmakers must conduct all business related to the making of the film in the name of the com- Everything should be paid for out of a company bank account, not a personal bank account. The copyright and other film assets should be transferred to and owned by the production company. When making the movie, it is the company that should enter into contracts required for making the film. Make sure to sign all contracts in your...

The Film Property

During development, ideas and concepts are turned into screenplays literary rights are acquired life stories are purchased. In short, this is the stage of a film's life cycle in which the film property first takes shape. No matter what kind of audiovisual production a filmmaker wants to make a narrative film, a television commercial, a documentary, an industrial video the filmmaker will need to have the legal right to tell that particular story. To put it bluntly, this is one of the most...

The National Archives

The National Archives in Washington D.C. has a huge selection of public domain footage produced by the U.S. government.This material is copyright-free, does not require a license agreement, and can be obtained for little more than the cost of laboratory and other duplication fees. For details on how to obtain copies of public domain films from the national archives, see 1. Locate the copyright holder of the film clip you want to use. (See Copyright Searches and Permissions, p. 102.) 2. Contact...

The Right Rights Holders

Prior to any literary acquisition deal, the producer must research and investigate the ownership of the copyright and other intellectual property rights to the literary property in question. (See Copyright Searches and Permissions, p. 102.) If any part of the literary property was created by writers or artists other than the owner, the owner's contracts with those artists and writers must be reviewed to ensure that the work was created as a work made for hire, or that those rights were...

Unions

In addition to labor and employment laws, production companies may need to concern themselves with union laws and regulations. Many professionals in the entertainment industry are members of a union such as Screen Actors Guild (SAG), Writers Guild of America (WGA),AFTRA, or IATSE.When you work with these unions, your contracts will need to comply with the applicable union's Collective Bargaining Agreements and Master Bargaining Agreements. These master contracts contain minimum salary, health...

What Are You Getting

What you're getting depends upon what kind of deal you're negotiating. From a filmmaker's perspective, you will generally be acquiring Rights. Contract clauses that deal with intellectual property rights are often the most critical part of the film contract. (See Appendix A A Filmmaker's Guide to Intellectual Property Law, p. 247.) They control The copyright to a screenplay. (See Appendix A Copyright, p. 247.) The right to use a company's trademark in your film. (See Trademarks on the Set, p....

What Are You Giving In Exchange For What Youre Getting

Money or the right to money is usually what you're giving in exchange for rights of services and property. Obviously, compensation comes in many forms fixed compensation, deferred compensation, net profits, contingent compensation, bonuses, royalties, rental fees, licensing fees, buyouts, option prices, etc. (See Appendix C Compensation, p. 292.) Understanding when you are obligated to pay the money is just as important as understanding how much money you will need to pay. A producer who...

What Is A Copyright

The most important intellectual property law for filmmakers is copyright law. Copyright is actually a collection of legal rights, all of which protect original works of authorship fixed in any tangible medium of expression.1 Copyright protects all of the following Literary works, such as screenplays, novels, magazine articles, poems Motion pictures, television shows, and other audiovisual works Musical works, including any accompanying words Dramatic works, including any accompanying music...

Whats Allowed in One State May Not Be Allowed in Another

What makes this area particularly tricky is that most of the rights involved are governed by state laws. And to make things even more complex, the laws differ from state to state. For instance, some states recognize a right of publicity others don't. To be on the safe side, you should obtain the broadest possible set of rights and releases from all persons whose stories are depicted recognizably in the film. It's C.Y.A. time here. If you don't, you could expose yourself to liability if you...

Why This Is Not a Contract Form Book

A quick thumb through this book will show you that there are few form contracts within these pages. This is intentional. I was an independent producer for many years before I became an attorney. Like many producers, I was very hands-on I was much more comfortable wrapping cable than reading contracts. When it came time to negotiate a contract, I would pull a contract form book from the shelf and fill in the blanks. After all, I figured, a lawyer wrote the form book, so the contracts it...

Works Created by the US Government

Works created by the U.S. government are not protected by copyright.11 A work of the U.S. government is a work prepared by an officer or employee of the United States government as part of that person's official duties.12 Example Jolene wants to use photographs from NASA's Hubble telescope as a background to her music video. She may do so without seeking NASA's permission because NASA is a federal agency and its images are generally not copyrighted. She must, however, be careful when using...

Writing Collaboration Writing Partners And Joint Authorship

Whether you are writing a screenplay that you plan to produce or are writing one that you hope to sell, at some point you may decide to collaborate with other writers. Writing partners can be a great way to ease the burden of creating a 120-page screenplay. They help each other through writer's blocks, share in the actual workload, and bring new and fresh perspectives to each other's material. But, as with any business relationship, working with a writing partner can create legal problems,...

Security Interest

A security interest is a property interest in collateral pledged to secure a loan or other obligation. For example, when you buy a car on credit, the loan company has a security interest in your automobile. Often filmmakers are required to grant a security interest in their films as collateral for a loan. Sometimes filmmakers must grant a security interest to secure other obligations. For instance, producers who have agreed to work under Screen Actor's Guild (SAG) rules are required to grant a...

Eo And Other Contractual Obligations

If you have errors and omissions (E& O) insurance, make sure that you comply with their policy regarding artwork and other clearances. Remember you need this insurance, and the surest way to get a claim denied by an insurance company is to fail to comply with the policy requirements. If your policy states that you must get a release for all identifiable trademarks, you need to do so, regardless of the fact that your use may be informational, and thus, not infringing. Similarly, if you are...

Remedies For Breach Of Contract

A party that has been hurt because the other party to the contract has breached that contract may sue for breach of contract.The chief remedy for a breach of contract is the award of monetary damages.The primary kinds of damages awarded for breach of contract are compensatory and consequential. Compensatory damages compensate the hurt party by paying her an amount of money that will Put her in the position that she would have been in, had the contract been performed as expected, or Put her in...

Net Profits

In its most basic definition, net profits is the money which remains after the costs of making, marketing, advertising, financing, and distributing the film have been repaid. In other words, net profits are what are left over after everything else has been deducted. When people refer to points on the back end they are referring to a percentage of a film's net profits. No contract clause strikes as much terror into the hearts of profit participants as does the clause which lays out the...

Idea Rights Protecting Your Pitches And Avoiding Idea Theft

Without a doubt, a copyright is the best way to protect a screenplay from being stolen. However, a filmmaker may have only an idea for a film or television program a concept that has yet to be turned into a screenplay and copyright law does not protect ideas. In fact, even though they are valuable to the filmmaker, ideas can be very hard to protect legally the law starts with the presumption that ideas are free for anyone to use. Generally, for a filmmaker to protect an idea when he or she is...

Movie Studio Footage

Unlike stock footage houses, movie studios may not be as amenable to licensing clips of its films to independent producers. Furthermore, the studio may not have all the rights you need to license. For instance, if the film was based upon a preexisting literary property, such as a stage play, novel, or comic book, the studio may have only obtained the rights to exploit that literary property within that motion picture only. In other words, it may not have the right to license clips from that...

Agreement

Like professional actors, professional directors have their own union, the Directors Guild ofAmerica DGA www.DGA.org .According to the DGA,The Director's function is to contribute to all of the creative elements of a film and to participate in molding and integrating them into one cohesive dramatic and aesthetic whole.1 Although many independent films are made with nonunion directors, the DGA's definition of a director is instructional in that it outlines the expectation of every director that...

Hiring A Screenwriter

Often a writer will pitch an idea to a production company in the hopes that the production company will hire her to write the screenplay. See Idea Rights, p. 51. Or a filmmaker will have an idea or own the rights to literary property and need to hire a writer to turn that idea or property into a screenplay. See Literary Adaptations, p. 65. At the outset it is critical that the production company that hires the writer complies with all of the state and federal labor and employment laws. See...

Why You Need A Location Release

If you shoot on somebody's private property without his or her permission, you may expose your production to criminal penalties and civil liability for trespass, trespass to chattels, invasion of privacy, and nuisance.A location release is a contract between you and the property owner or other authorized party that gives you the right to enter that property and shoot your film. In addition to preventing lawsuits, a location release is also an enforceable contract which gives you a right to...

Issues In Film Contracting

Deal points are those points that everyone must agree on before negotiating the rest of the contract.These are the terms that would appear on a deal memo or short form contract. Major deal points are usually the points that are negotiated first by the producer and, as a result, these are the clauses that this book will spend the most time on. For a description of common contract clauses found in production agreements, see Appendix C The Clause Companion, p. 291. A deal memo is a short...

Always Negotiate a Purchase Agreement with the Option

When you negotiate the Option Agreement you must, at the same time, also negotiate the purchase price and other key terms of the screenplay sale. A filmmaker who has negotiated the Option Agreement to a screenplay, but not the Purchase Agreement, holds a worthless option. It is worthless because although the filmmaker may exercise the option, the sale terms have not been agreed upon and, therefore, the screenwriter is not obligated to sell the script to the filmmaker for a certain price. In the...

Copyright Recordation Assignments And Transfers

Any contract or other document that transfers copyright ownership may be recorded at the Copyright Office. In other words, you should record writing agreements, options, literary property purchase agreements, copyright assignments, and contracts containing copyright assignment or licenses clauses. In fact, the Copyright Office will record any document pertaining to a copyright. Recording a contract or other document pertaining to copyright ownership has several effects. It establishes a public...

Law Copyright Issues

The distributor may want to investigate your film's chain of title pretty thoroughly. Be prepared to supply the following All contracts pertaining to the film property. These include screenplay agreements, literary rights acquisition agreements, life rights consents, and assignments of all of the copyrights in and to the film property to the production company. See The Film Property, p. 14. All service contracts of creative personnel, especially performers, writers, directors, and musicians.The...

Music Licensing

Music licensing is one of the trickiest areas of entertainment law. For prerecorded songs the work of seeking permissions is doubled. This is because there are actually two kinds of copyrights to every piece of recorded music, and licenses need to be obtained from each copyright owner.You need to secure the permissions from The party who owns the copyright to the musical composition. The party who owns the rights to the recording of the composition that you plan to use. The two copyrights...

Avoiding Disaffirmance of a Minors Contract in California

Most states have laws that allow a person to get out of contracts that he or she made when they were a minor called disaffirming a contract . This can be extremely problematical for filmmakers who find that the contracts they have with their minor performers are no longer valid. In California, however, if an entertainment contract is approved by Superior Court, it cannot be disaffirmed.25 Any party can seek court approval, and the approval extends to the whole contract and all of its terms and...

Crew Services Agreement

In contrast to the above-the-line contracts, below-the-line contracts tend not to be as heavily negotiated. Accordingly, many production companies tend to work with deal memos rather than long form contracts when hiring crew members. This approach has the advantage of simplicity a fill-in-the-blank approach favored by time-strapped producers. The downside is that many deals are not as one size fits all as producers would like to believe. For instance, a cinematographer who is hired on the...

Permits Required to Employ a Minor in California

In California, a producer who wants to hire a minor to act in a film must first obtain from the Division of Labor Standards Enforcement a Permit to Employ Minors in the Entertainment Industry PEMEI or file an Application for Permission to Employ Minors in the Entertainment Industry DLSE form 281 and be granted one.You can find the form at http www.dir.ca. gov dlse DLSEForm281.pdf. The parent or guardian must apply for an Entertainment Work Permit DLSE form 275 EWP by completing an Application...

Step By Step Copyright Searches and Permissions

At some point in the filmmaking process you will need to get permission to use somebody else's copyrighted work in your film. Unfortunately, finding a copyright owner can often be tricky. Here are some tips to help you locate a copyright owner and seek permission to use their work 1. Get basic information about the work To begin, you will need to get some fundamental information about the work itself The year of publication. If this is a book, this information will be found as part of the...

Screenplay Clearance Report

Prior to production, you should have your entertainment attorney prepare a screenplay clearance report. Essentially, this report details potential legal problem areas in the screenplay. The report should combine the efforts of a copyright records search to identify conflicting copyright ownership and infringement issues, and a compre- hensive legal analysis to identify other intellectual property, defamation, and liability The report should alert you to the following legal issues, if present...

Trademarks On The

When most people think of a trademark, they think of logos for products Coke , Nike , McDonalds or services Club Med , SuperCuts , Amazon.com .This is fairly accurate, as trademarks and service marks are used 1 to identify and distinguish a trademark owner's goods and services from those sold by others and 2 to identify for consumers the source of those goods and services. Trademarks are found on product labels, billboards, and clothing insignias. But trademarks can also be sounds, like the NBC...

Major Deal Points Producers Services Agreement

The Producer's Services Agreement is used to hire a Producer.With slight modifications it can be used for line producers, producers, and executive producers. Most of the agreements in this book are written from the producer production company's point of view.The deal points for the following Producer's Services Agreement are given from the point of view of a production company wanting to hire a producer. Production Company. The production company will want to hire a producer while still...

What Is The Right Of Publicity

An offshoot of privacy law, the right of publicity is a person's right to benefit from the commercial exploitation of his or her own identity. Infringement of the right of publicity occurs from the unauthorized use of a person's identity or likeness, voice, name, etc. for commercial purposes i.e., labeling goods and services with the unauthorized likeness or using the unauthorized identity in commercials and advertisements . A celebrity's likeness is not the only part of his or her identity...

The Producers Services Agreement

This book assumes most people reading it will be the executive producers for their own independent films. However, there are different kinds of producers on a film some of whom you may need to hire. An Executive Producer is at the top of the food chain. He or she is usually in charge of finding financing for the picture and making the top-level management decisions, such as which director or lead actor to hire. The executive producer often ends up with an ownership position in the film...

De Minimis Taking

De minimis is a fancy Latin phrase which means of the least, or of trifles. It refers to the taking of an insignificant amount of the copyrighted work, so trifling that a court will rule that no harm is done even though what was taken was taken, without permission. Although this is a defense to infringement, rather than an exception to copyrightability, it does underscore the fact that courts will rule that some infringement is just too harmless to worry about. Example Several years ago, a...

Major Deal Points Music Licensing Agreement

Production Company.The work of the production company is doubled and it may need to negotiate and execute two separate license agreements from two or more parties. Make sure you are asking the correct party for the correct license. Music Publisher. You will always need to secure the license to use the musical composition from the publisher. In one contract from the publisher, obtain the following licenses synchronization, performance, and videogram licenses. Record Company. If you need to use...

Buying Rights

When you acquire literary property, such as the rights to a screenplay or the right to turn a book into a movie, you must pay special attention to the legal formalities of acquiring that property's copyright. All parties involved will need to know exactly who owns which of the many rights involved. For instance, even though the production company is buying the right to turn the screenplay into a movie, the writer of an original screenplay might want to keep a portion of the copyright rights,...

What Are Life Story Rights

Actually, the term life story rights is a bit of a misnomer. In reality, what you will be acquiring is a collection of rights and releases from liability. Typically, a Life Rights Consent Agreement grants to the filmmaker the following rights The right to portray a particular person's life in whole or in part. The right to fictionalize or modify that person's life story. The right and sometimes the obligation to use pseudonyms for people and places portrayed in the life story. The copyright to...

Major Deal Points Distribution Agreement

The distribution agreement is the contract governing the relationship between the distributor, who exploits the film, and the production company, which created the film. Production Company. The production company is seeking a distributor with the ability to license the film effectively in certain territories. All distributors have their strengths and weaknesses for instance, many distributors are better at exploiting domestic rights than international rights. It may be in a producer's best...

Getting Permission To Use A Location

A shooting permit is permission from the city or municipality to shoot on public or private property within that jurisdiction. Many filmmakers believe that they only need to worry about shooting permits if they are filming on public property, such as streets or parks. In actuality, some jurisdictions require filmmakers to secure permits and pay filing fees even if they plan only to shoot on private property within the municipality The key is to check with the city clerk's office in the city or...

How To Get A Script To A Sag Actor

The best way to locate a particular SAG actor is through his or her agent. If an actor is represented by an agent, pitch the project first to the agent and never talk business directly with the actor. Agents are very protective of their actors. Nothing gets under an agent's skin more than feeling like a production company is going behind his or her back and negotiating directly with the performer. But how do you find out which actor is represented by which agent If you're working with a casting...

Right of First Negotiation

Whoever holds the right of first negotiation is saying, You have to deal with me first For instance, if the owner of a copyright wants to sell or license that copyright, this clause requires the copyright owner to first negotiate the sale of the copyright with the party who holds the right of first negotiation. If after good faith negotiation the parties can't reach an agreement, or if the holder of the right of first negotiation doesn't want to buy the copyright, then the copyright owner is...

Ultra Low Budget Sag Wardrobe Allowance

Most independent producers do not have much money therefore the most important thing a low-budget producer can offer a professional actor is a great role, in a great script, in a great movie that will receive distribution. Other ways that you can entice an actor to be in your film without breaking your bank include Offering him a higher salary, but making most of it deferred compensation. Offering him an associate producer credit. Offering those perks and amenities you may...

Certificate Of Authorship

A Certificate of Authorship is a key document in the chain of title of a motion picture. This is a notarized statement by the writer identifying the author of the script. In the case of a work made for hire, the script's author is considered to be the production company. A certificate should be executed by all of the script's authors. I, writer's name certify that I have written the attached screenplay as a work made for hire for production company's name , pursuant to that writer's services...