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8.12.2014

PRODUCTION TIPS: It's Better to Avoid a Lawsuit Than to Win One pt. 2

The second article of a 3-part series

In part 1, we looked at the reality and possibility of being sued for creating art and entertainment followed by ways to avoid legal problems with the script and other artworks used in making the film.  As we all know, the main (but not only) reason why you as a producer would hire a lawyer is to avoid lawsuits.  Although it might not seem like it when you are itemizing your production budget, it is money well-spent (provided you get a good lawyer).  However, in this day, age and economy, there are filmmakers who literally have no budget. But even without a budget, you are still vulnerable to lawsuits so you need to do what you can to protect and defend yourself.  That's why I place so much emphasis on documenting everything you do and keeping it in a safe, accessible place.  This protects you and minimizes the risks you face.  In part 2, let's look at what you can do when dealing with actors, crew, locations, children, music, trademarks and titles.*

  1. CAST, CREW & LOCATION RELEASE FORMS and AGREEMENTS.  Lucky for you, you live in the Internet era where almost anything is only a few key clicks away.  That means you will find agreement templates, sample contracts and release forms you can use if you look for it.  There are dangers to using them blindly since many may have missing key clauses, irrelevant or confusing terms, illegal or oppressive conditions.  And the biggest problem for a producer using contracts online is the lack of understanding for what is possible under the law and how it pertains to your production strategy.  For ex., you might overlook the clause that explains how disputes are resolved but it is important and there are different reasons for why you may want to mediate and arbitrate first or just skip all that and go to court. Still all that hasn't stopped people from downloading contracts and using them.  So, if you feel that you must then here a few key things to guide you in using them.
    • Use contracts that are in plain English, not filled with legalese like "wherefore" and "hereunder."  It should be easy for you and the other party to understand.
    • Ideally, use one that is short and concise.  Short is not always better because you do risk not having adequate protections or certain issues covered. But if you are shooting a no-budget production then it probably means you are not only keeping it simple but also keeping it affordable so many clauses will prove unnecessary then. Things like a "pay-or-play" clause are not even a part of the discussion at that point.
    • At a minimum, a production cast/crew/location contract should contain the parties' names and addresses, the length of the contract, the duties and responsibilities of each party, compensation terms, credit (if any), the right for a producer to use the other party's work or property in the production, what state law controls the contract, a warranties and indemnities section and how to resolve disputes.
    • Make sure to get them signed.  
  2. CHILDREN, PRODUCTS AND MUSIC. When it comes to release forms, it's important to note there are additional things to consider when working with children, products and musicians. Regarding children, you need a parent's permission to film that child, plain and simple.  Same goes for using products and trademarks in your film or video. Basic rule of thumb is that you should get a signed release from the trademark owner, especially if you plan on using it in a negative light. Otherwise, you will have to either hide it or not use it. However, if you plan on depicting it in a favorable or neutral way than you have a decent chance of getting permission. If you think "Fair Use" is a magic phrase that gets you out of trademark infringement claims, you might be right, but you'll need a lawyer to explain why that is to a judge. Finally, when it comes to music, remember that you need permission from the composer as well as the performer because are two different rights involved here; publishing rights and performing rights.  This is key to remember especially when a piece is in the public domain.  You use Mozart's Requiem Mass in D minor knowing that Mozart, the composer, is dead... so that means, public domain. Right? Thing is you didn't notice that the NY Philharmonic Orchestra recorded the version you are using and they are certainly not dead and will do what they can to stop you from using their recording.  If you're not making the music yourself, you need the composer AND performers to sign release forms. 
  3. TITLES. It doesn't happen often but once in a while films have the same titles.  You can't copyright a title but the MPAA (an American trade association) does arbitrate and rule on who can use what title on a film (among the members of the MPAA i.e. all the major Hollywood studios).  If you are a no-budget production then you are unlikely to be registering your title with the MPAA. However, other films are.  So you need to make sure that your film doesn't resemble another title that can create confusion among the films and lead to a lawsuit or injunction.  Ease your worries and do a title search.  You might be able to hire an attorney to do one on a one-time basis or even be able to pay a title search firm to do it for you but if you truly can't afford it... then do a thorough search online. And employ common sense; don't try to trade off of the success of a film or show out there by titling your film with a title that can potentially cause confusion.  Only pornos tend to get away with that.
Go here for part 1 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.


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