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...

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...

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 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...

Capacity

Example Freddy Filmmaker corners Duncan Director at his favorite watering hole, the Teamster Tavern. Eager to sign the auteur to his new film, Freddy plies Duncan with one Appletini after another. Right before the drunken director's head hits the bar, Freddy pushes a director's services contract in front of him. Duncan signs with a flourish and passes out. Because he was intoxicated when he signed the contract, the court will not enforce it. To create a valid contract, you must have the legal...

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...

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...

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...

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 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 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.)

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...

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...

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...

Favored Nations

A favored nations clause says that no other party can receive a better deal or a more advantageous position than the person who has favored nations. The clause is tied to a particular deal point, such as compensation or credits. For instance, if a production company grants a favored nations provision to a supporting actor with regard to his or her compensation, it will have to pay that supporting actor the same rate that it pays the principal actors, who presumably make more money

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...

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...

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...

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...

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

If you find daunting the prospect of dealing with so many legal issues, take heart. You can do this. Having worked with many different kinds of artists in my law practice, it has been my experience that producers, more than any other type of artist, tend to grasp legal concepts the quickest. Perhaps it's because in many ways, a producer's job and a lawyer's job are similar both jobs involve negotiating, lining up alternatives, creating contingency plans, and making the best of emergency...

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...

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 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...

Legal Purpose

Contracts to perform illegal acts are not valid. Example Tony Soprano's contracts would not be enforceable in court, although he would probably have other ways of enforcing them. Samuel Goldwyn supposedly once said, An oral contract isn't worth the paper it's written on. Goldwyn's advice should be taken to heart as a sound business practice. Technically, some contracts do not have to be written to be enforced. However, most of the contracts that producers deal with routinely are required to be...

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 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 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...

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....

Notice

Notice provisions govern how the parties must communicate with each other about issues relating to the contract. For instance, the clause may say that communication sent via e-mail does not constitute sufficient notice. When drafting the notice provision, it is important to have the proper legal names of the parties. If you are dealing with Pariah Pictures, LLC, don't call them Pariah Pictures, Inc. It may sound obvious, but sending a letter to an Inc. when the proper business form is LLC may...

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

Representations and Warranties

These are statements of fact and promises one party makes to another with the intention that the other party will rely upon them. For instance, in a contract that transfers copyright from a screenwriter to a producer, one of the representations and warranties the screenwriter makes is that she has not infringed upon anybody else's rights while creating the screenplay. For example, the writer promises that the screenplay is wholly original with him or her and that making it into a movie will not...

Reread Your Talent Agreements

Before the film is publicized, exploited, or distributed, it pays to read your talent agreements. (See Performer's Services Agreement, p. 155.) Double-check your agreements for Any publicity restrictions or likeness approvals you may have given to the talent. Movie posters can create big problems if they are created without attention to a performer's likeness approval clause. Credit and billing obligations. Find out which performer's names must appear in paid advertising, how large the names...

Reserved Rights

This specifies which rights the owner retains.These are the rights the producer does NOT get.Which rights the owner keeps are the subject of negotiation. Book rights (the right to make an author-written sequel). The producer may ask for a Holdback Period for the Reserved Rights (often 5 7 years).This means that for the Holdback Period, owner CANNOT exploit those reserved rights which are subject to the Holdback. Even though the rights are reserved by the owner, the producer will often ask for...

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...

Right to Suspend or Terminate

This clause details how and when a production company may suspend or terminate a crew member, performer, or other worker's contract. Essentially, it allows the production company to put the worker's contract on hold for a certain period of time for events beyond the parties' control (like force majeure). If the worker is ill, inca pacitated, engages in unprofessional behavior, or commits a crime, this clause also allows the production company to cancel the worker's contract altogether.

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...

Scnes Faire

Sc nes faire (French for scenes to be made) are common themes typical of an artistic genre, and thus appear in numerous works. Incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic are Sc nes faire13 Furthermore,thematic concepts which necessarily must follow from certain plot situations are not entitled to copyright protection.14 Example Molly is filming a Western movie, and she wants to shoot a scene involving...

Setting Up The Production Company

The first step in forming a production company is to create a business entity, such as a limited liability company (LLC), limited partnership (LP), or corporation. There are many advantages to setting up a business entity You can divide the financial risk among several people. The members, partners, or shareholders of a business share in the company's profits and losses. Your company is considered a legal person, and as such can enter into contracts, bring lawsuits, and hold intellectual...

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...

Step By Step Protecting An Idea

Make it as full, complete, and expressive as you can and register it with the US Copyright Office. (See Copyright Registration, p. 268.) 2. If possible, try to have the production company sign an NDA. 3. If an NDA is not possible, have your agent or attorney negotiate a waiver of the Submission Release form. 4. In the pitch meeting, try to create a contractual obligation contingent upon the movie studio using your idea. Example Say something like, I'm telling...

Step By Step Securities Compliance

To issue securities, production companies must Work with an attorney experienced with private placement and securities laws. Either register their securities or file for Regulation D exemption by submitting a Form D. Comply with their state securities laws (called Blue Sky laws) regarding offering securities. Identify appropriate potential investors the best practices to make sure all of the potential investors are accredited investors. Have an attorney create offering documents for your film...

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...

Stock Footage Company

Stock footage companies are in the business of licensing clips to production companies. In addition to providing the right licenses and footage, they will also help you search for a right clip for your production. Their fees are based on The filmmaker's final exhibition and distribution media The duration of the license The geographic territories in which the film that incorporates their clips will be shown Note laboratory fees and duplication costs are often additional These companies will...

The Copyright Notice

Although it is no longer a requirement for copyright protection, it is advisable to include a copyright notice on all of your copyrighted work.The proper format for the notice is , Copyright, or Copr., followed by the year in which the work was first published, followed by the name of the copyright owner. Example Wombats in Love 2006 Zeus Pictures, Inc. Location For motion picture or video, the copyright notice should be placed in one or more of the following places4 With the cast, credits, and...

The Law Library

The remainder of the book contains your very own portable law library. Here you will find material that fleshes out and supplements the topics presented in the main part of the book. The library is composed of four sections Appendix A A Filmmaker's Guide To Intellectual Property (p. 247) Learn more about copyright rights of publicity defamation privacy law and moral rights. Appendix B A Filmmaker's Guide To Contract Law (p. 283) Learn more about contract law basics contract formation types of...

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 Ownership Of Rights

This is often affected by which author came up with the idea upon which the screenplay is based. (To keep things simple, many writers opt to share the rights equally, despite one of them being the idea person.) Ownership issues include Who will own the rights to the screenplay Do the writers intend to be joint authors If the writers do NOT want to be considered joint authors, the agreement should specify this. How is the ownership of the rights divided Is it shared equally Are the rights shared...

The Script Of The Deal

A contract is a portrait of a transaction the script of the deal. It spells out the rights and obligations of each contracting party. If one party breaches the contract the other party may sue for damages, usually money. (See Breach of Contract, p. 287.) If money is not sufficient compensation, equitable remedies may apply, such as injunctions, which are court orders compelling a party to do something or refrain from doing something. (See Appendix C No Injunction, p. 302.) In the film industry,...

The Working Relationship

How do the writers decide when and to whom to sell the screenplay It is a good idea to restrict all of the writers' abilities to grant any kind of license in the screenplay. Typically, the agreement requires the written permission of all or of the majority of the writers before the screenplay can be licensed. How is the income from exploiting the screenplay divided One typical formula is to have the right to income mirror the copyright ownership interests of the writers. When is the screenplay...

Violation Of Privacy Rights

Producers need to be careful to avoid stepping on the privacy rights of people whom they film. The extent to which privacy rights are recognized drastically differ from state to state. What a producer may do freely in one state may be actionable in another. As with most torts, consent is a valid defense to these causes of action. There are four basic kinds of invasions of privacy Infringement of the right of publicity (previously discussed) Public disclosure of private facts

WGA Credits

If the film is subject to the WGA rules and jurisdiction (in other words, the production company is a signatory and the writers are union members) the WGA will determine the writing credits. How a writer is credited by the WGA affects his or her right to residuals and other rights under the WGA MBA. When principal photography is over, the production company sends to both the WGA and to all of the writers A Notice of Tentative Writing Credits The production company's proposed credits Any source...

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 Distributors Do

Distributors exploit a film in a variety of markets. Depending upon the deal, the production company negotiates, the distributor, or its agents called subdistributors may license the film for exhibition, broadcast, or sale in the following markets Free Television broadcast television, as opposed to cable Pay Television cable, satellite, pay-per-view, on-demand Home Video sales of the film via DVD or videocassette Commercial Video distribution of DVD or videocassettes for public exhibition...

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...

Work Made For Hire

Normally the person who creates a work is considered the author and will own the copyright as well. Not so for a work made for hire.The copyright to a work made for hire is initially owned by the employer or other hiring party, not by the artist who created it. For motion pictures, there are two ways a work gets to be a work made for hire23 Employees Any copyrighted work created by employees within the scope of their employment is considered work made for hire, and is automatically owned by the...

Working with Union Writers

The Writers Guild of America (WGA) is the union for professional screenplay and television writers. If you want to hire a writer or buy a script from a writer who is a member of the WGA, you may need to become a signatory with that union.A signatory is a company that has signed, and therefore agreed to abide by the collective bargaining agreement of the WGA, known as the WGA Theatrical and Television Minimum Basic Agreement (MBA). If anything in your contract with the writer you hire conflicts...

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...

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...

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...

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...

OnSet Teacher Requirements in New York

Unlike California, in New York there is no minimum age for child performers at theatrical, radio, or television performances 36 But minors have restrictions on working hours based on age and if they are required to attend school.37 The employer is required to provide a teacher, who is either certified or has credentials recognized by the state of New York, to such child performer to fulfill educational requirements pursuant to the education law when the child performer is not receiving...

The Doctrine Of Independent Creation

This is not an exception to copyright law, but a rule that allows two people to have copyright ownership in what is essentially the same work. The way it works is this if two authors come up with the same work independently of each other, and neither has copied the others'work, both works will be entitled to copyright protection even though both works are substantially similar to each other. This is true because copyright is based on originality, rather than novelty. As long as the work...

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...

No Third Party Beneficiaries

A third party beneficiary to a contract is someone who is not a party to a contract, but who could nonetheless sue to enforce the contract. In order to become a third party beneficiary a person has to prove that the contract was made for his or her immediate benefit. Example Acme Productions, Inc. is hired by the Poetry Channel to make a docu-drama about Walt Whitman's little-known adventures as a gunfighter in the old West, entitled Barbaric Yawp. Acme Productions, Inc. hires Peter Performer...

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...

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...

Loanout Companies

Loan-out companies are often used by actors and above-the-line crew members. A loan-out company is a company formed for the sole purpose of providing the services of an artist to a production company. Loan-out companies are typically either LLC or subchapter S. Corps. When a production company is hiring an artist who has his or her own loan-out company, the production company is actually hiring the loan-out company, which in turn is providing the services of the artist. Any contract with that...

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...

The Performers Services Agreement

Very often a Performer's Services Agreement will come in two parts a brief two pages or so deal memo, coupled with a much longer Terms and Conditions section.The deal memo proper contains key compensation and engagement terms applicable to that particular actor's deal. The Terms and Conditions section is designed to apply to the deals of all of the actors on the film. For definitions and explanations of common contract clauses, see Appendix C The Clause Companion, p. 291.

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...

Separation of Rights

Writers who are members of the WGA have special rights called separated rights. Separated rights are additional rights granted to WGA members who create original works under the WGA MBA. If a writer creates an original screenplay, or contributes a substantially new story to pre-existing material that has been assigned to him or her, the writer may be entitled to a separation of rights. These rights, which stem from copyright, would not automatically flow to the writer for hire in the absence of...

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...