PRODUCTION TIPS: It's Better to Avoid a Lawsuit Than to Win One pt. 1

The first article in a 3-part series.

The main reason why producers hire lawyers is to avoid lawsuits.  However, a good production lawyer can offer more than that. For example, she can help formulate a strategy to take the film on a successful festival run or negotiate a deal at a film market or lend a project some legitimacy or advise on how to attract and raise the necessary funding or even provide some creative feedback that could be crucial to the production's success. But no lawyer kids themselves into thinking those are their main selling points... they know that while they can do all that and a bag o'chips, the main reason producers hire lawyers is to avoid a lawsuit (or so that the distributor or studio who buys the film avoids a lawsuit).

So hiring a lawyer should be a no-brainer, right? But the truth is it doesn't happen.  And the biggest reason why is that lawyers cost too much.  Now that's a reasonable excuse because lawyers ARE expensive.  But only to a certain degree.  While there are entertainment lawyers who charge up to $600 an hour, there are also lawyers, like this guy, who offers a la carte services and flat fees as well as much more affordable hourly rates. Aside from that, many times the money saved in NOT hiring a lawyer ends up being used (and more) to pay a fine or a lawsuit or a disgruntled worker which all requires a lawyer later on, anyway. 

Still, because we live in a DIY age and because producers will always try to cut corners and save money, it's to be expected that many producers might prefer to put some extra time and work into taking the proper steps to avoid a lawsuit without a lawyer.  I sympathize with the filmmaker out there who really, really, really wants to get their film made but is working with a no-budget. So here are some reality checks and tips* for the guy or gal who really can't afford a lawyer (however, all of you producers who have the money for one stop being cheap and c.y.a. the right way). 

1. ART & ENTERTAINMENT IN A LITIGIOUS WORLD. Remember that just because you are making art and entertainment, the rest of the world doesn't care until it becomes a festival favorite, a box office hit or a cult classic. However, everyone, who is not you, will care about whether you have infringed on their copyright or their trademark, whether you committed libel or product disparagement, whether you invaded their privacy or "stole" or "borrowed" their idea. Or they might just think they can make some money off of you or make your life a living hell.  All this to say, that you and your production can be sued any time whether it's for a good reason or not and it doesn't matter that you have noble intentions to create art and entertainment that makes the world a better place.  
2. DEVELOPMENT AND THE SCRIPT. From the moment you decide to pursue your filmmaking process, document the process and go the extra mile to make sure you and your production people are doing the right things. If you can't hire a lawyer for the whole process, then hire him or her on a step-by-step basis.  Regarding the script, it's simple, either you originally wrote it (which simplifies things) or you got it from someone else in a variety of ways.  Either way, keep records of your script drafts and registrations.  If they are adapted from other sources, make sure that you have the rights to them from the actual copyright owner. If it's in the public domain, make sure it really is.   If you wrote it with other people, make sure you have basic written agreements on the ownership and contributions of the script (use the WGA collaboration standards, as a starting point). If you purchased the script or hired someone to write it or any combination, make sure it's memorialized in a written agreement signed by both parties and stored in a safe place.  However, remember that even if you do all that, you still run the risk of getting sued, because someone might still think you "stole" their idea anyway.  In that case, if you really haven't and you've kept track of all your steps from the get-go, you have a good chance winning your case.
3. MUSIC, FOOTAGE AND OTHER ARTWORKS.  Maybe you're like John Carpenter writing the music for your films or you're like Wes Anderson with a brother who can create the posters and production props for your films.  In those situations, you are fortunate to be able to DIY or have a family member who puts love before money (hopefully).  But for other filmmaker and producer, you are either buying or renting the right to use music, film footage and production artwork.  If you are really strapped for cash, then your best bet is to DIY or go into the public domain.  But just as with your script and story idea, do you due diligence to make sure the artwork really is in the public domain. Otherwise, get a release form from the artist who created it.  Don't just assume that good intentions and the artistry of your film allows you to use whatever you want under Fair Use defenses.  

UPDATE:  Another way to find various artworks for your films: Creative Commons. Writers, artists, photographers, filmmakers and musicians publishing under Creative Commons licenses allows you to use their works more-or-less royalty-free based on fulfilling certain obligations like providing credit and the like.   

Stay tuned for more tips in part 2 and part 3.

*Remember this isn't legal advice so use it at your own risk but don't hesitate to contact me if you have questions or comments at danny@djimlaw.com.