Showing posts with label public domain. Show all posts
Showing posts with label public domain. Show all posts

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

    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

    The COVID-19 “Get Back to Filmmaking” Checklist

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