Showing posts with label contracts. Show all posts
Showing posts with label contracts. Show all posts

While You Wait for the Pandemic to End and Go Shoot, Do these 10 Things


What are you as a filmmaker to do with all this free time during a pandemic like COVID-19 when you can’t actually shoot? 

For you, life during coronavirus means sheltering in place at home, unless you are also an essential worker. This is agony for sure, since filmmaking is a passion that can only be fulfilled by actually working on a film. But this pandemic is temporary and, sooner or later (most likely, later), things will get “normal” again... to a degree.

So, what are some things you can do besides editing your movie or tweaking your script? Here’s a list of 10 things:    

  1. Hone your pitching skills.
  2. Prepare for your shoot in a post-coronavirus world by updating your contracts and developing on-set policies in keeping with health guidelines. And be sure to implement them when you shoot!
  3. Draft a psychological profile of your film’s audience.
  4. Read The Hollywood Reporter, Variety, Indiewire, Mubi Notebook, and any other sources of news and analysis about the culture, art and business of filmmaking.
  5. Use social media to find potential collaborators. Your next producer, writer, editor, line producer, costume designer, etc. could be a few keyboard clicks away.
  6. Research all the different ways you can self-distribute your film and build your business plan around that approach.
  7. Create concept art, storyboards, or any other piece of visualization that can help your film get funding or attention.
  8. Host a table read of your script on Zoom, Whatsapp, Google chat or whatever other webcam source you trust.
  9. Send screeners of your film, even if it’s rough, to your peers for feedback.
  10. Watch as many webinars, how-to’s, interviews and behind-the-scenes videos on YouTube, Vimeo, Sundance Collab, Criterion, etc. as possible. And take notes!

FINAL NOTE: These are stressful times and many of you have second jobs to go to, a family to take care of, or overwhelming problems to deal with, so it is also ok to just take a break from working on your film. It really is ok to just do nothing and catch up on sleep or maybe curl up with a favorite movie, book, song or TV show. The whole point of this exercise is for the moment when you feel reenergized and ready, you can tackle some of the things in the list above.

Stay safe and looking forward to all the art that is to be born from this experience!



PRODUCTION JOURNAL: Danny Jiminian on Strategic Planning for Content Creators panel at the IPRHFF (Nov. 12, 2016) 10-11 AM


Tomorrow I have the privilege of being on a panel at the International Puerto Rican Heritage Film Festival (IPRHFF) with 2 talented and experienced filmmakers and producers, Christopher Lopez and Sonia Malfa. It will be moderated by consultant, Roxana Colorado.  We will share our experiences and advice on effective and strategic ways to get your film or tv show across the finish line. Among a number of topics, I'll be focusing specifically on how to protect yourself when you pitch a film, why you should always use contracts and how to build a relationship of trust with your investors. Hope to see you there!


IPRHFF Multimedia Conference: TV, Film and New Media 
New Location: Hunter College 68th St. & Lexington Avenue, Southwest corner West Building Room 714 
[Please provide ID at Visitor's Service Desk at building entrance]
9:30 AM - 6:00 PM (Six Panels) 
22 Latino Thought Leaders in Media & Entertainment and Moderators 
FREE ADMISSION 

All of the panels are worth going to but I will only be on the first one from 10:00 - 11:00 AM.


Strategic Planning for Content Creators: 
Pre-production, Pre-production, Pre-production: 
Proposals, Mission Statement, Budget, Legal for Filmmaking/TV/New Media 
Moderator: Roxana Colorado, LN Strategic Consulting Services 
Danny Jiminian, Esq. 
Christopher Lopez: Director/Screenwriter, Adrift 
Sonia Malfa: Filmmaker/TV Producer

*******


Jiminian Law PLLC is devoted to helping clients in all areas of business, nonprofits, copyrights, trademark, sports and entertainment law.  Providing knowledgeable and effective representation are the keys to my success.  Danny Jiminian, Esq. is available for a free consultation if you call him at 917.388.3574 or 929.322.3546 or email him at danny(at)djimlaw.com.

PRODUCTION JOURNAL: Lead Actors Should Do What Peter Coyote Recommends


Actor, Peter Coyote, has written a letter that I think should be spread far and wide. Read it in full here.

My favorite part* is the recommendation he makes, which is this:
There is a simple way leading actors might bring a second, more flexible and targeted weapon into the fray on behalf of your colleagues which incidentally, would provide the ancillary benefit of insuring that you consistently play opposite actors of the highest caliber. If you were to include language in your contracts specifying that, in your films, the “quotes” of your peers must be recognized as a negotiating floor for their compensation, if you publicized that fact, and, if you kicked back a modest amount, say on salaries over six million dollars a film to make that money available, each and every actor negotiating to play opposite you would be empowered to demand the fair compensation that he or she has won for their work. (my bold)
People in general, and specifically lawyers, are accustomed to doing things because it is legal or according to the rules.  But we also do things because they are customs. For example, when we negotiate, we usually start the meeting with a handshake and some pleasantries not because that is the legal way to do it or just because it fosters good will even with an antagonistic party. We do it because it has become the custom; everybody in the Western world shakes hands. To not shake hands makes you an outlier, at best (germophobe?) or a pariah, at worst.

I would like to see Coyote's recommendation become a custom. As someone who sees the inequities of the entertainment industry in the way it treats its interns and below-the-line personnel, Coyote's recommendation sounds like a great idea to me. If more and more lead actors did this (and directors and producers did this for their crew), this would become a custom in the industry. And then fear of being the outlier or the pariah could prevent even the greedier types from not including a clause like this in their contracts. In fact, this could become a default clause in all major A-list production contracts.

* I geek out on contract drafting.

CASE STUDY: What To Do As A Filmmaker With The PWC "Filmed Entertainment" 2015-2019 Data

In his Art of War, Sun Tzu wisely counseled, "Assess the advantages in taking advice, then structure your forces, accordingly to supplement extraordinary tactics." With that kernel of wisdom in mind, I looked at this year's Pricewaterhouse Coopers Global Entertainment and Media Outlook 2015-2019 and studied their summary of "Filmed Entertainment." Although I have not read the full report, the summary provides plenty food for thought so I asked myself what would I do with this data as a filmmaker? My answers are below labeled, "The Film Strategy tip." Let me know what you would do with that data.

Note, I have not purchased the full report and I am only basing this on the insights they published. But even those short insights are revealing.
  1. Growth around the world will boost filmed entertainment revenue. Global total filmed entertainment revenue will rise at a 4.1% CAGR (Compounded Annual Growth Rate) to 2019, reaching US$104.62bn. Particularly strong growth will be seen in China (14.5% CAGR) and in Latin America thanks to a 6.1% CAGR in Brazil and 11.5% CAGR in Argentina, but even global leader the US, with 33.0% of the total market in 2014, will see above-average growth of 4.6% CAGR.
    • The Film Strategy tip: In the next 5 years try to shoot a co-production in Latin America, China or Nigeria OR cast your film with well-known actors from Latin America, China or Nigeria. An international cast in a co-production can be a two-fer; 1) you might be able to get the actors at a good rate for the prestige of working on a US production and 2) with the possibility of production incentives and the expected growth, your film stands a decent chance of making money for you and your investors.
  2. Global box office will be driven by local films as well as Hollywood fare. Global box office revenue will rise at a CAGR of 5.7% to US$48.45bn in 2019, from US$36.70bn in 2014. But one trend noticeable everywhere from China to Western Europe is the significance of local films in boosting country box office revenue, and while Hollywood still dominates, local films will increasingly make an impact.
    • The Film Strategy tip: The good news is that a small film can go global. The bad news, if you can call it that, is that it will most likely be a genre film like horror or action with minimal dialogue to make it easy for audiences across different languages. On the other hand, again, consider co-productions again. A small film in the US might go nowhere beyond the film festival circuit. However, a small film co-produced in, say Colombia, might not only generate box office it could also gain a following as a "foreign film." I don't know why but movie audiences tend to more easily accept complexity in a film if it is "foreign" instead if it is domestic.
  3. China’s box office growth will see it pull ever nearer to the US. China’s box office revenue is forecast to rise at a 15.5% CAGR, its growth outstripping that of every other market surveyed. China’s box office revenue will thus move from US$4.31bn in 2014 to US$8.86bn in 2019 as its cinema-building boom continues and rising disposable incomes make the cinema more affordable.
    • The Film Strategy tip: As China continues to grow, it will continue to not only compete with Hollywood but also buy up Hollywood. Will this mean less piracy as China's studios tie up their finances with Hollywood? Does this mean branded entertainment that is globally recognizable like Marvel's comic books and Star Wars will continue to dominate the box office? Will this mean China's intellectual property will be ripe for use and development in the US the way Haim Saban took old Japanese stock footage and made the Mighty Morphin Power Rangers? Essentially all I have are questions but it means that if you're in the film industry you will read more about what China is doing and what China's audiences watch.
  4. Physical home video revenue continues on a downward trajectory. Global total physical home video revenue will decline from US$30.78bn in 2014 to US$22.81bn in 2019 at a -5.8% CAGR. With 52 of 54 territories recording a decline, the factors contributing to this—including the reduction in “bricks and mortar” video stores and the rise of electronic alternatives—only look set to strengthen.
    • The Film Strategy tip: You can not depend on DVD sales anymore. The physical disc is being relegated to use for the art video market (as a way to keep track of authorized artwork versions) and use as part of a merchandising package for well-known brands (think of a Star Wars set with the discs in a box shaped like Darth Vader's helmet). 
    • This is borne out by a Bloomberg report too. According to BloombergBusiness: "Online Video Revenue to Pass DVDs This Year, Theaters in 2017"
      Spending on movie downloads and video streaming subscriptions in the U.S. will surpass purchases and rentals of DVDs for the first time this year, according to a report Tuesday from Pricewaterhouse Coopers LLP. 
      Electronic home-video revenue will climb 13 percent to $9.5 billion this year, while physical sales drop to $7.8 billion, the consulting firm said. By 2017, the electronic revenue will reach $12 billion, at which point it will exceed the U.S. film box office, according to the report. 
      The accounting firm’s annual outlook for media and entertainment shows that while overall spending will continue to climb, technological shifts in the way content is delivered are creating winners and losers. 
      Music streaming, for example, will overtake the still relatively new business of digital purchases of songs by 2018. Digital revenue will account for 45 percent of all spending on books by that date. 
      Global media and entertainment revenue is predicted to rise at a 5.1 percent annual rate through 2019, reaching $2.23 trillion, the company said. 
  5. Electronic home video revenue will nearly double over the forecast period. Global electronic home video revenue is set to rise from US$15.28bn in 2014 to US$30.29bn in 2019. Total electronic home video OTT/streaming revenue in particular is seeing a CAGR of 19.0% as online video and streaming services are beginning to attain a significant foothold in many markets.
    • The Film Strategy tip: Pay attention to your contracts. What is your take of the internet streaming, home video OTT and VOD pie? Plan your movie to have a web and mobile  presence from the beginning so that you can capitalize on that later during distribution.
  6. Connected devices open up new video opportunities—and challenges. Smartphone connections are forecast to rise from 1.92bn in 2014 to 3.85bn in 2019. The proliferation of such connected devices among consumers will create both significant new opportunities and considerable challenges for companies creating and distributing filmed entertainment content.
    • The Film Strategy tip: Not only can you shoot a film with your phone (see Tangerine) but you can market and distribute your film using the phones and tablets. Study the market and pay attention to ways that filmmakers and others are using connected devices to get eyes on their works and build revenue.
Danny Jiminian is a producer and attorney who specializes in Entertainment Law, Intellectual Property, Business Law and Nonprofits and practices out of New York. For a free consultation, email him.

Matter included here or in linked websites may not be current. It is advisable to consult with a competent professional before relying on any written commentary. No attorney client relationship is established by the viewing, use, or communication in any manner through this web site. Nothing on this blog or blog posting is official legal advice; it is just information and opinion. But if you want to, you can visit my professional website and hire me at www.djimlaw.com.

PRODUCTION TIPS: Just Know that Profit Participation Comes Out of the Producer's Pocket

I recently wrote an article about why it is a good thing for certain filmmakers making certain films to share the wealth with profit participation instead of deferred compensation. A caveat: that has a limited use. However, I wanted to revisit that idea and clarify what that means for a filmmaker looking to adopt a profit participation strategy to paying their cast and crew.

The truth is that while paying your cast and crew with profit participation instead of deferred compensation can lower a producer's and investor's out-of-pocket production and postproduction costs and improve morale/motivation, it has limits.

Here's why:
A producer makes multiple contracts throughout the life of a film starting with the writer and ending with the distributor. Along the way, she decides to offer back end participation (or net/gross profits or profit participation) to the cast and crew and signs a contract with them promising to do so. When the producer meets with the distributor, the distributor will likely tell her, we did NOT commit to pay your cast and crew a percentage of the film's box office gross, YOU did. And unless the distributor feels compelled to honor that agreement or sign a contract with an actor (who would have to be A-list for that to even be considered) promising them back-end, there is no way the distributor will pay anyone in the film besides the producer they are negotiating with. And so that means the back-end to the cast and crew is coming out of the Producer's portion. Say a distributor pays the producer an advance and splits the box office 50-50 then the producer will pay her cast and crew out of 50% of the film's earnings not the full 100%. That will probably make the investors and producers unhappy.

That's why profit participation for the entire cast and crew is really only possible with a tiny cast and crew or as one element of a varied compensation package (profit participation with some pay, credit, perks, etc.). But here are two possibilities that can make profit participation for cast and crew more palatable:

  1. Promise the cast and crew a percentage participation in the manager's share of the net revenue for the LLC (the production company for the film would have to be a a manager-managed LLC). This would leave untouched the investor's share (who are the other members of the LLC) although this would also lower the producer's share even more. OR
  2. Negotiate with the distributor so that the distributor assumes responsibility for directly paying out all net profit participation commitments on behalf of the producer. Note, this will still make the producer's and investor's pie smaller.

The key is knowing what it means to the producer's and investor's profits if she offers profit participation. If it is untenable to do because it will take too much out of the pie then stick to raising money to pay the cast and crew upfront or with deferred compensation you actually intend on paying out if the film makes money.


Danny Jiminian is a producer and attorney who specializes in Entertainment Law, Intellectual Property, Business Law and Nonprofits and practices out of New York. For a free consultation, email him.

Matter included here or in linked websites may not be current. It is advisable to consult with a competent professional before relying on any written commentary. No attorney client relationship is established by the viewing, use, or communication in any manner through this web site. Nothing on this blog or blog posting is official legal advice; it is just information and opinion. But if you want to, you can visit my professional website and hire me at www.djimlaw.com.

Woman With Money, licensed under Creative Commons.

PRODUCTION TIPS: Don't be #SelfishFilms, Share the Wealth

Sometimes when a no-budget filmmaker can't afford to pay a cast and crew what they are worth, then "profit participation" > "deferred compensation  


So many filmmakers struggle with the challenge of making their film because it is such a complex artform with a gaggle of logistical and artistic elements to it. One minute you are figuring out locations the next you have to decide on wardrobe then your DP is asking you about lenses and lighting (hell you might have to be the DP too) and your lead actor wants you to help him understand the crux of the scene. That's not even taking into account the budget and the legal and the food and the... you get the picture. 

Filmmaking is hard work to do all by yourself which is why most don't. Filmmakers raise money to cover the costs of their cast and crew and those who can't raise sufficient money promise deferred compensation to their cast and crew. But even those who can't afford to pay cast and crew (and offer merely credit and deferred compensation) still find ways to pay for equipment, food, transportation and select cast and crew members. That's all and well but most people in the industry know that "deferred compensation" is code for free. Especially if the contract refers to them receiving deferred compensation out of net proceeds after the investors have been paid off.

That's why I'm surprised I don't come across more filmmakers offering everyone in their cast and crew "profit participation" instead of "deferred compensation." The profit participation can be structured as an equal split between everyone involved who has a substantial role to play or it can be structured as an amount that pays the cast or crew member the amount they would have made had they been paid their actual rate. Also, the amount can be capped so that the profit participant receives his or her pay (and maybe a little more) or it can continue to flow into their pockets for the life of the film's distribution.

Granted it's always better to simply raise enough money to pay your cast and crew (even if it's at a discounted rate) since everyone agrees that "real" money now is better than "maybe" money later. Also, profit participation is not always easy to define and structure and works better for a small cast and crew (since traditionally it's only a few select producers, investors, castmembers and the director who would be deemed profit participants, anyway). Finally, the investors should have a guaranteed first line to any monies made since they are the ones taking the biggest financial risk. But if no-budget filmmakers really want to show their appreciation for cast and crew that they can not afford but need, then offering profit participation could be better than deferred compensation. It gives everybody skin in the game to make the film a success and reflects a commitment by the producers and director to actually pay the cast and crew by sharing in any future money it makes.

Danny Jiminian is a producer and attorney who specializes in Entertainment Law, Intellectual Property, Business Law and Nonprofits and practices out of New York. For a free consultation, email him.

Matter included here or in linked websites may not be current. It is advisable to consult with a competent professional before relying on any written commentary. No attorney client relationship is established by the viewing, use, or communication in any manner through this web site. Nothing on this blog or blog posting is official legal advice; it is just information and opinion. But if you want to, you can visit my professional website and hire me at www.djimlaw.com.

Photo by Tax Credits, licensed under Creative Commons.

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.

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.


    PRODUCTION TIPS: Get the Right to Make Changes... Or Else


    So you're a producer with a hot property optioned from a novelist who gave you the right to shoot a film based on her novel.  You have all your agreements signed by your above-the-line and below-the-line people and your production is ready to start.  During the development of your film, you choose to make major changes to the story that you think will make it more engaging, more artistic and/or more marketable.  Then your phone is blowing up with calls from the original author on which your production is based.  She's pissed off with the changes but you're not worried because she signed your contract and she can't do anything to stop you. 


    Or so you think.


    You and your lawyer look at the contract and he notices the following: that while you did obtain the right to represent the work, you DIDN'T obtain the right to make alterations, changes or modifications to the characters, stories or text created by the original author in the first place.


    As Gordon P. Firemark makes clear, the original author (or a copyright licensor like a publisher) can stop your production IF your contract isn't bulletproof. Although he is speaking directly to producers of plays and musicals, this is still good advice for independent film producers.

    You see, nearly every production agreement contains a clause saying, essentially, that no changes to the material may be made without the prior, written approval of the author (or licensor, if dealing with a publisher like Samuel French, Tams-Witmark, MTI, etc.) these approvals aren't often granted. The expectation is that the material will be presented as written.
    So, any changes that are made without approval amount to the creation of unauthorized derivative works. And therefore, copyright infringement.
    Additionally, most contracts between licensors and producers explicitly provide that any violation of the above provision is grounds for immediate termination of the production license. And, once the license is terminated, any further presentation of the play amounts to another infringement of copyright
    Since copyright law provides for injunction as a remedy, the authors and their representatives have the power to require that offending productions cease and desist, and wise producers comply. If they defy, and the Courts become involved, they could wind up paying hundreds of thousands of dollars in damages, and be enjoined from further infringement. But, equally important is that producers don't want to burn bridges with playwrights or licensors. They want to be able to produce another show next year, etc. So, quick compliance and an apology only make sense. 
    So what should you do?


    1. Present the work as written. Contracts with creative staff, like director, music director, and designers, should specify a requirement that no material changes to the work may be made without approval, and that the producer must be notified of all proposed changes BEFORE they're made, and with ample time to seek and obtain author approval. Failure to comply should be grounds for termination, since it exposes the producer to a significant risk of loss if the show is shuttered. This isn't rocket science, but the help of an experienced entertainment lawyer can certainly make things easier.
    2.  If you do obtain approval for your changes, stick to what's been approved. And, get the approval in writing, make sure it's specific, detailed, and clear. Have your lawyer review the permission and advise you. 
    3. Never produce without a license. 



    PRODUCTION TIPS: 10 Ways Directors MUST Think like a Line Producer

     
    The no-to-low budget director is a man of many hats and throughout the production, the director will, at different times and simultaneously, wear the writer's cap, the executive producer's top hat, the director's beret, the line producer's helmet, the editor's hood... hell maybe even the caterer's toque. This is simply a reflection of how a no-to-low budget forces one to do more with less and so the director becomes a hybrid doing many of the most important jobs on the set by himself.  In an otherwise standard or big budget production, the director would pass the head gear to someone else who can devote all their attention to that specific job at hand.  One of the most important jobs that a director MUST perform with a no-to-low budget production is the job of the line producer.  In fact, even when he can delegate to someone else, the director would still benefit from wearing the line producer's helmet.

    It's easy to imagine the line producer wearing a helmet since they are in the trenches every day the film is being made and are there for the planning during pre-production. The line producer is the day-to-day producer of the film and serves as the eyes and ears on the set conducting and coordinating the production's strategy and battling against disaster and setback along the way.  They report directly to the producer and are given the role of "fixer" when major issues arise.  They're also the "line" between the exec producer, director and principal cast and everyone else in the cast and crew.  To get to their position, they have worked in as many positions in a production as possible including being an Assistant Director or Production Manager.  

    A director can focus on working with the the actors, sounds and visuals knowing that the production will run smoothly with a good line producer at the helm.  But when the producer/director can't afford to hire a line producer then, for better or for worse, he needs to act like one on the set.  Multitasking this way on the set means the director needs to be able to look at things from a line producer's perspective and thinking like a line producer means that you: 
    1. understand producing means knowing the end result of the project and what path it will take after it is completed.  This doesn't just mean knowing the end of your story the way a screenwriter would but knowing where you want your project to end up screened at and how it will get there.  Knowing that will affect your creative and logistic decisions before and while shooting.  Line producers must keep the bigger picture in their mind to anticipate how things may affect the investment, distribution and marketing.  So should you.
    2. know how to break down a script, create a practical budget and a realistic filming schedule.  A good line producer can look at a script and know how much it will cost and how long it may take to shoot.  Harnessing that skill takes practice and is something you should aim to do even if you can afford a line producer.
    3. know what to expect from your crew and the depths of your crew's abilities with the purpose of minimizing friction as they do their job.   It's a line producer's job to know what everyone does and assess job performance to ensure the production is using the hours in the schedule and the money in the budget wisely.  Knowing the jobs also lets a line producer iron out any conflicts that can arise within and between departments. Taking that as a cue, a director who understands the jobs and challenges of the crew will receive their respect and motivation.
    4. prioritize the elements of "mise en scene" based on what problem has been resolved and what task needs to be taken care of next. After consulting with the director and the producers during pre-production, the line producer knows what elements are the most important to focus on first from the following 8: casting/performance; production design (including location); costumes; make-up and hair; cinematography; sound; music; and, editing.  A problem-solving approach the line producer takes on the set once he knows what element is most important to the director is to first ensure that those issues are handled first and concurrently.  He then considers the rest based on budget, schedule and it's dire status.  Keeping all 8 elements in mind throughout the shoot, the line producer can head off issues before they become problems and solve problems before they become disasters.
    5. bring your motivation AND your hustle to the set.  To get the job done, the line producer must be a coach motivating the team to victory, one minute, and the diplomat negotiating with opposing forces the next.  Directors should always leave the diva attitude at home but even moreso when they are running a no-to-low budget production.  Instead of throwing tantrums and making unreasonable demands, you need to encourage your team to make it through the no-budget day. And improving your negotiation skills by smooth talking with crew members, location property owners, cops asking for a permit, etc. will come in handy when you move up the ladder and are negotiating with the big shots.
    6. carry EVERYONE's number on your person or phone. This doesn't just mean having the cast and crew's contact info but also having the name and phone numbers to vendors, rental houses, insurance providers, lawyers, agencies, businesses and organizations in or near your shooting location.  One of the ways a line producer solves problems is through communication; contacting people for information, following up on orders, asking questions, etc.  Directors forced to do everything on their own must be prepared to communicate at the drop of a dime, as well.
    7. understand the contracts, ordinances and regulations affecting your production as well as you understand your script. Line producers aren't lawyers but a good one knows enough of what affects the production from a legal perspective to do their job well and know what questions to ask.  Alot of this comes from the repetition of experience but it also comes from paying attention to key contract clauses like the description of services, terms of employment, compensation, illness and capacity, and expenses.  Line producers are also aware of permits, labor issues, intellectual property matters and production incentives that could support the project.
    8. track your progress by keeping and studying your production's paperwork regularly.  When a line producer is not on the phone, reporting to the producer or working with the cast and crew, he is reviewing paperwork.  From call sheets to production reports, the line producer needs to know whether or not the production is accomplishing the scheduling and budgeting goals created during pre-production and modified during production.  Even if you're inundated with having to do a million things on your no-to-low budget set, at least keep notes and review what you've done at the end of each day.
    9. think "safety" when you budget and schedule. I recently read a great article about working long hours that points out how what we in the film industry take for granted, in terms of long work hours, should be reevaluated.  Safety might not be the first thing a line producer thinks of when he starts to work on the budget and schedule but it should at least be in the top 3.  "But I've gotten away with doing risky things before, why stress about it now especially when time and money is hard to get?" you might ask.  Well no one will notice a production that almost becomes a disaster and almost harms the cast and crew but gets away with it. However, they will notice when disaster strikes and kills or maims people in your production.  Aside from the lawsuits that will sink your no-to-low budget film, the disfigurements and deaths of people will weigh on your conscience.  Like a good line producer who knows that the limits of a person's ability to produce at peak points diminishes over time, you shouldn't overwork your people with extremely long hours (even 12 hours is already long enough but it's considered standard; more than 12 and you're pushing your people).  You also need to devote sufficient time and money to pull off certain stunts. If you don't have it, then don't do it or do it differently.
    10. act decisive even when you're not sure, adapt and overcome and always remember that the right decisions are made during pre-production with thorough yet flexible planning. 
    Directors working on no-to-low productions need to learn as much as they can from line producers.  Line producers use their creativity and quick thinking skills to be effective on the set and directors adopting the line producer's habits will find their directing abilities enhanced.  Like a good line producer, you will then be able to mediate disputes, handle strong egos, fix any problems that arise and know practically everything one needs to know to physically produce a movie.
    .

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