Film Production Legal Issues Part III: Pre-Production Contracts

Film making can be broadly broken down into three phases: pre-production, production, and post production.  The two posts preceding this one were about pre-production topics but I separated them into individual articles because each of those topics is big enough to deserve its own attention.  This post will focus primarily on the types of contractual matters you will deal with prior to filming.  Each of these contracts works as a kind of insurance to reduce the likelihood of litigation.  Get all of your contracts in writing.  No exceptions.  Not even for friends.  Just like good fences make good neighbors, good contracts make good business relationships. 

 

Obtaining the Script

You can’t make a movie without a script and you shouldn’t use a script until you know it’s “clean” (litigation resistant).  There are three parts to cleaning a script: releases and assignments, registration, and clearance. 

 

Releases and Assignments

Releases and assignments grant your production company ownership of the script and right to turn it into a film.  Any script based on real people or preexisting material is fertile ground for lawsuits so you need to protect your production company from liability.

If your film is based on real people or events you may need to purchase “life story rights.”  Essentially this means that the subject (or their estate) will release you from liability for defamation, invasion of privacy, and violation of any publicity rights the subject may have.  Generally speaking, defamation and invasion of privacy rights extinguish at death and are not heritable by the estate.  Publicity rights, however, are heritable under certain conditions, depending on the particular state law at issue.  Although Louisiana has not yet recognized publicity rights, many other states have, so you will usually have to get the rights anyway because film production (and especially distribution) is typically an interstate activity.

For scripts based on preexisting material you need to get a license from the owner that lets you create a derivative work.  These licenses typically grant your production company limited rights to adapt the material for the screen, to promote the film, to release it in ancillary markets (DVD, streaming video), and other related activities.  In return, the owner of the material typically receives some kind of royalties.  The specific terms of any such license will, naturally vary depending on the specific circumstances under which you negotiate.

Next, you need to make sure that your production company owns the script.  Copyright automatically vests in the author unless the work is created “for hire.”  Even if you write the script yourself, you want to assign, in writing, the script to your production company to close any potential breaks in the chain of title.  Lastly, once your production company owns the unlimited rights to the script, you need to make sure that the script’s copyright is registered.  I have previously discussed the importance of registering copyrights here.



Script Clearance

Ok, so now your production company owns a script.  You aren’t out of the woods yet.  Your script may be full of liability pitfalls like copyright and trademark issues as well as defamation or invasion of privacy claims.  The thing is, it’s difficult to know what the potential issues are with the script until you have it reviewed and cleared.  You could have your script reviewed by an attorney or you could hire one of the many script clearance companies out there.  Either way, the reviewer should go through the script and determine what potential legal issues present themselves and prepare a report on the legal issues.  If a non-attorney prepares the report, you should have your production attorney review the report to address any potential issues.  Sometimes this means you will have to edit the script, other times it means you may have to obtain further licenses or releases. 

 

People and Places

Every cast and crew member should have an employment contract.  The contents of the contract should spell out the terms of employment, including compensation, hours, duration, crediting, profit-participation, travel and lodging, and other bargained-for rights.  Additionally, if you hire any guild or union members then you will have to review any applicable collective bargaining agreements and make sure that your contracts conform appropriately.  If you have any minors involved in your film then you need to have their parent or guardian sign the minor’s contracts as well as make sure that you comply with applicable restrictions for employing minors.

You will also have to obtain releases from your cast and crew.  These releases essentially allow the production company to use the work produced by the cast and crew without having to worry about potential invasion of privacy, intellectual property, and other claims that could potentially arise otherwise. 

Any time you are filming on location you need to obtain the necessary municipal film permits for filming on public property and/or releases when filming private property.  These releases allow you to enter onto or film the property without running afoul of the property owner’s (or tenant’s, where applicable) privacy rights, property right, intellectual property rights, and other potential causes of action that might arise from you filming on someone else’s property.

Licensing

Next you need to make sure that all of the other pieces you want to use in your film are properly licensed and cleared.  Essentially, all of the intellectual property that will appear in your film should be licensed, including music, logos, sound clips, images, and the like. 

For any music you will need both a synchronization license to let you use a particular song, and a master use license to use a particular recording of a song.  Try to nail these licenses down as soon as possible.    The more well known a song or band is, the more expensive the licenses will be.  Music can be a critical part of a film and you don’t want to get too attached to a piece of music that you may not be able to license.

 

Insurance

Lastly, you need insurance.  You need production insurance to cover the day to day issues of being an employer with the particular kinds of liability filmmaking can bring.  You also need errors and omissions (E&O) insurance to protect you against anything that may have been overlooked in any of the releases or assignments you have acquired.

Next topic: Production Legal

Film Production Legalities Part II: Business Entity Formation

This segment will cover the various business entities that are available in Louisiana and how well suited (or unsuited) they are to film production.  Choosing the right entity for your film depends on the interplay of four different factors: control, liability, financing, and tax.  Generally, your goal will be to maximize your control over business decisions and minimize your liability and taxation for your chosen method of financing.  

Film Production Legal Issues Part I: Financing

Today I have a topic that most people don’t like to talk about: money.  I was initially going to write about the legal aspects of film production but that topic is too large for any one post to do it justice so I am breaking up my primer on film production in to different parts.  I’m going to start this series by discussing the legal aspects of various avenues through which you can finance your film.  

Architectural Copyright for Artists

I want to talk today about a rather obscure but (I think) interesting and important legal concept: architectural copyright.  My dad is an architect and I gained my appreciation of architecture from him and the myriad buildings he took me to see.  Historically, architectural works were not protected by copyright.  Neither the plans and drawings nor the actual buildings were copyrightable.  Architecture became copyrightable in the U.S. in two stages: first, when the 1976 Copyright Act included architectural plans and drawings, second, when Congress passed the Architectural Works Copyright Protection Act in 1990, which gave protection to the buildings themselves.  So this article really only applies to relatively new buildings; buildings created before 1 December 1990 are not protected.  I’m going to start by discussing what is and what is not protected by architectural copyright and then I will discuss how such copyrights can be infringed.

To Register or not to Register; that is the Trademark Question.

Many people ask, “Should I trademark my [insert name, logo, whatever, here]?”  If you start typing that phrase into Google, it will autofill a huge variety of things people might want to trademark.  I’m going to answer this question in pretty generic terms so that it might apply to a wide range of people who want an answer to this question because the considerations and the filing process is similar even if the type of business is not.  First, I’m going to talk a little bit about what a trademark is and what it is not.  Then I’m going to talk about trademark registration, both federal and state, and what you can and cannot get from registration.  Buckle in, this is going to be a long article, but hopefully it help you determine whether you should register your trademark.  A well-crafted and well-tended trademark can be one of your company’s most important assets and is not something to be taken lightly.

My Blog is Alive with the Sound of Music Copyright Ownership

Music is the lifeblood of many cultural and creative endeavors.  Music exists for its own sake, both live and recorded, and is instrumental (pun totally intended) in film, television, and theatre productions as well as a myriad of other venues.  There are as many different expressions of music copyright ownership as there are different ways music is used.  So buckle in, let’s talk about who owns what, when, and how.  

This is What Happens When You Exploit an Artist's Theme

A few years ago, I spoke to an artist whose work was displayed in a gallery in the French Quarter on Royal Street.  When I entered the gallery, I immediately noticed that many of the artist’s paintings bore a striking similarity to paintings I had seen not an hour before, around Jackson Square, just a few blocks away.  All of the artwork expressed a similar visual theme.  I commented on the similarity to the artist, who bemoaned that he created the theme paintings and the others, on Jackson Square, “copied” it.  Now, the painters around Jackson Square did not exactly copy any of the artist’s paintings; none of them were attributed to the artist, nor were they pastiches of the artist’s theme.  Rather, the Jackson Square paintings looked as if their painters tried to exploit the artist’s theme.  Did this artist have a legal leg to stand on against such exploitation?  Yes, but not under copyright law as some might first expect.  Instead, the artist may have been able to successfully sue under a trademark cause of action called “passing off.”  

What We Talk About When We Talk About Licensing

Ok, you’ve created something, great.  You put in the time, the effort, and your know-how to make a film or a piece of art or a song and it’s just what you wanted it to be.  Other people have started to take notice of your work and they want to use it.  Excellent!  So now you need something that will let someone else use your creation while protecting your rights to your work.  Enter: the licensing agreement.

Band Partnership Agreements

In my last post I spoke briefly about Band Partnership Agreements (BPA).  I feel like this idea deserves to be expanded on due to its importance for working bands.  When a band is just starting out, everyone is excited about the music, the creativity, the possibilities, and everyone in the band is (more or less) willing to do what it takes to help the band succeed.  In order to avoid the time and expense of litigation, band members should think about how to deal with the internal problems that will almost inevitably arise, during the early days of happy cooperation.