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Production Journal

The Film Strategy 5 with Cindy Cowan.

Production Tips

Your November 2016 Calendar for Film Festivals, Screenplay Contests, Fellowships, Labs and Awards.

Case Study

When To Say No To A Film Festival

Case Study

The Full Costs and Income of an Indie Film

The Production / Filmmakers Toolkit

Documents, Templates and Resources for Every Phase of Production.

8.20.2014

PRODUCTION TIPS: It's Better to Avoid a Lawsuit Than to Win One pt. 3

In parts 1 and 2, we covered the reality of being sued and ways to minimize the chances of that happening (and losing) by essentially displaying common sense, taking the time out to make sure 'things are what they seem' and getting everything in writing.  Producers and filmmakers with money hire lawyers and others to do all that work for them so they can focus on the fun stuff like directing scenes or hobnobbing with actors and financiers. The true no-budget filmmaker can't hire a lawyer to do the work but the work still needs to get done somehow.  This series has been an attempt to provide no-budget filmmakers, like you, some guidelines to help you organize and minimize your risk.*

  1. INTERNS.  'Everyone loves PA interns cuz they work for free, right?!?' Wrong. The Blackswan case was a wake-up call for the industry; your interns are not a way to get free labor.  For far too long, interns have been used in abusive manners (even if the producers didn't intent to abuse the interns). The clearest rule to remember regarding the use of an intern in your production is that they are there for THEIR benefit. The job they do should be something that benefits them because they learned something or gained a valuable experience.  And a big no-no is using an intern to replace someone you would actually hire.  It's ok to use interns in your no-budget production but use common sense and provide an actual opportunity that benefits them. If you want some tips on using interns... here you go.
  2. 1st AMENDMENT RIGHT vs. PUBLICITY RIGHT.  Publicity rights are the rights an individual has to control the use and likeness of their name in a commercial setting. Filmmakers sometimes shoot a documentary or a fictional narrative based on the life of a person or a fascinating event.  In those scenarios, a problem can arise when someone's publicity rights (as the person on which the film is based on or the person depicted in the film or the person being interviewed in the film) comes in conflict with a person's rights under the 1st Amendment (freedom of expression). Basically, the general rule is that rights under the 1st Amendment trump publicity rights. Thanks to the 1st Amendment, journalists and writers can write freely about others without their consent.  And depending on the context of your film, courts could decide that your film should also have that privilege.  But when you are a no-budget filmmaker who hopes to avoid being sued it pays to play it safe and just get a written signed release from people who will be the subjects of your film.
  3. DEFAMATION. Defamation is communication that harms the reputation of another person so as to lower her status in the eyes of the community or deters people from associating or dealing with her.  There are 2 types of defamation; libel (which is embodied in a physical form, for example in print) and slander (which is spoken).  The classic victim of defamation is someone who suffers embarrassment and humiliation, as well as economic losses, like a job.  There are some defenses and privileges that a filmmaker can depend on to avoid losing a defamation case like telling the truth or relying on communications that occur during judicial, legislative and executive proceedings or communicating about public figures and public officials.  As a result, some things you should do to avoid problems are:
    • Avoid portraying individuals who are not public figures or public officials.
    • Be able to prove that a so-called defamatory statement is the truth.
    • Have everyone appearing in the film or who the script is based on sign a release.
  4. REVIEW THE FILM. Part of the luxury of paying an attorney to work for you from the development stage until distribution is that she will be responsible for things like drafting all the different funding, employment and location agreements and release forms you will need, making sure they get signed and stored in a safe place, doing the due diligence on the people signing to make sure they are who they claim to be, reviewing the script and the film for potential liability risks and more. But since you are doing it all yourself, you have some extra jobs to do:
    • During development, review the script and then during postproduction, review the finished film.  Both times you are looking for potential liabilities regarding publicity rights, defamation and privacy rights among other things.  Specifically, you're looking for mentions or recordings of and about people and products that you may need to get releases from.  Make a list then get signed releases or delete them from the script or finished film.
  5. E&O INSURANCE. You may not be able to afford a lawyer but if you are trying to get your no-budget film sold to a distributor, you are going to have to get Errors & Omissions (E&O) insurance.  E&O insurance will help you keep your personal assets in case you lose a lawsuit or have to settle.  E&O protects the policy holder from claims for defamation, invasion of privacy and trademark/copyright infringement. Distributors want to see your E&O policy because they are not interested in buying something they might later have to go to court for.  Shop around and look for insurers that specialize in media and film production policies that cover the most important exposures then assess the dollar amount of coverage, the insurance company, the broker and the value (the coverage received for the amount of premium paid). By the way, E&O insurance is separate from the insurance you might purchase to pay for accidents or losses that affect the people or equipment on the set. Check out the "Film Production Insurance Primer" in the LEGAL section of the Filmmaker/Production Toolkit for more details.
  6. CHAIN-OF-TITLE. If you have made it to the point where you have a distributor interested in buying your no-budget film, then you will be asked for a "chain-of-title." A chain-of-title in the film industry is the series of documents that establishes a producer's right to use the copyrighted material by tracking that right from the author or owner of the copyrighted material to the producer through a "chain" of assignments and transfers. To make your distributor happy, you will obtain a copyright report for your film and present it to them along with your E&O insurance policy and your chain-of-title. Now you're happy too because you made it this far.
  7. MONITOR THE FILM AND KEEP YOUR PROMISES. Even after you sell the film and the film makes money, there is still work to do.  By this point, you should have the money to hire lawyers and accountants to monitor the film once it's in the distributor's hands but you have a DIY attitude so you are still doing it yourself. And so, regularly monitor the performance of your film.  You might never get the net profits promised in the distributor's agreement no matter what you do but it's still your job to track and ask. Monitor the film's performance in all the different markets your distributor is responsible for and request audits from time to time to make sure they are keeping their promises to you as agreed. In a related note, just like you want the distributor to keep their promises, keep your promises to your investors (if any) and to your cast and crew who you hired on a contingent compensation basis through deferments and net profits.  At the time, they worked for you for "free" because you had no money; now that you have money, do right by them and pay them. Or they will sue.  Same thing with your crowdfunders, give them what you promised on your crowdfunding campaign. Or face a lawsuit and other problems like job loss and depression
Everyone has a role to play in ensuring the success of a production and even the most talented and detail-oriented producer will be overwhelmed by all the "hats she has to wear." But no-budget filmmakers take the DIY route because they believe in their vision and story so much that they need to shoot it NOW. Although that passion is commendable, if you are that filmmaker, it's always better for you to get the necessary money needed so you can hire and delegate the varied tasks of your production and see it through to the end. Doing this will allow you to focus on the most important task of all in your production; telling a good story with an effective and creative use of visuals, sound, dialogue, acting, effects, production design and music.

Read part 1 and part 2.  

*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.

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.


    8.06.2014

    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.