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10.27.2014

PRODUCTION TIPS: The 4 Most Important Contracts for the 1st Time Filmmaker

This is NOT what I mean when I say, "Put it in writing."
The independent filmmaker is inundated with so much to do that even when she tries to do something right, she will make mistakes.  Mistakes are unavoidable and we learn from our mistakes so, in some sense, we learn to live with them.  For some filmmakers, mistakes actually force the director to make a creative decision that enhances the film.  But there are some mistakes that must be avoided at all costs or they will sink your production.  One of the mistakes a filmmaker must be sure NOT to make is failing to have a contract. In its simplest form, a proper film contract records in writing the agreement between the filmmaker and everyone else involved in the production.  It should define things like each parties' rights and responsibilities, compensation, length of service, and other matters important to protecting the parties and the production.  Those contracts then become a part of your chain of title which any distributor who wants your film will want to see before they buy.  Without them, you are not selling your film.

Unlike a studio director who doesn't have to worry about the chain of title because the studio has a whole business and legal department to handle that, an independent first time filmmaker has to worry and make sure it's ready.  What are the 4 most important contracts a first-time indie filmmaker needs to have in order?

  1. WORK-FOR-HIRE AGREEMENTS: Everybody working for the production from the EP down to the PA needs to sign a contract.  Among other things, it should provide the scope of employment, whether the person is an employee or an independent contractor and how the work was commissioned.  It must be signed by the worker (especially if the worker is an independent contractor).  
  2. JOINT AUTHORSHIP AGREEMENTS: Friends who get together to write a script and fail to sign an agreement spelling out the terms of their writing relationship risk never finishing the script and ending that friendship.  It's better to quibble about the main points of the writing relationship and coming to an agreement before starting then jumping right in without any clearly defined roles, rights and responsibilities and then descending into constant arguing.  
  3. LICENSES/OPTIONS: Unless you are writing the non-adapted script; writing, performing and recording all of the music; using photographs and film/video footage that only you took; designing all the key art and logos; and, not using anyone else's copyright or trademark, you need to get a license agreement.  Your licensing agreement should spell out things like whether the use is exclusive or non-exclusive, for commercial purposes and for how much.  One additional tip for producers and filmmakers is that when you option a copyrighted work, make sure you have a purchase agreement along with it.  The purchase agreement should be signed at the same time as the option because it spells out how much you will pay for the property once you exercise the option.  An option without a purchase agreement is merely an agreement to negotiate the cost of the property at a future date.  
  4. PRIVATE PLACEMENT MEMORANDUM: If you are one of the lucky filmmakers who are able to raise financing (i.e. non-crowdfunding monies from your family, friends or business acquaintances) then you need to properly prepare the documents for a private offering. The investment can be structures as a loan or as equity.  SEC Rule 10b-5 requires an issuer of securities to disclose all material information to potential investors in a document known as the Private Placement Memorandum ("PPM").  The investor should also sign a subscription agreement which contains certain representations and warranties related to the offer in the PPM and asserts that the investor is accredited.  
Filmmakers have alot of creative and business decisions to make and because no one is perfect, mistakes will be made. But the rate of mistakes drops when you focus like a laser beam on the most important creative and business decisions and do them right.  Properly drafted, signed and stored contracts should be one of those business decisions that you focus on and do right from the get-go.

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