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