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Legal Issues in Film Pre-Production

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Presentation on some of the legal issues in film pre-production.

Presentation on some of the legal issues in film pre-production.

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  • 1. Legal Issues inLegal Issues in Pre-ProductionPre-Production Donald R. Simon,Donald R. Simon, J.D./LL.M.J.D./LL.M.,, Adjunct FacultyAdjunct Faculty
  • 2. Legal Issues in Pre-ProductionLegal Issues in Pre-Production • LLCsLLCs • ContractsContracts • PermitsPermits • ReleasesReleases • Production insuranceProduction insurance • Items to begin in Pre-Items to begin in Pre- productionproduction
  • 3. How Much Do You Need to Know?How Much Do You Need to Know? – To protect themselves and their projectsTo protect themselves and their projects from lawsuits and other legalfrom lawsuits and other legal entanglements, media producers need toentanglements, media producers need to be familiar with key areas of the law.be familiar with key areas of the law. – GOOD NEWS: Media producersGOOD NEWS: Media producers do notdo not need to be lawyers!need to be lawyers! Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 4. – ButBut dodo need to anticipate and identify theneed to anticipate and identify the many potential legal issues that canmany potential legal issues that can come up during a production andcome up during a production and recognize when to call a lawyer.recognize when to call a lawyer. Legal Issues in Pre-ProductionLegal Issues in Pre-Production How Much Do You Need to Know?How Much Do You Need to Know?
  • 5. Media Producers Should Know:Media Producers Should Know: – For exampleFor example:: • When parties should put agreements inWhen parties should put agreements in writing.writing. • When permits, permissions, and releasesWhen permits, permissions, and releases are required during the course of aare required during the course of a production.production. • What steps are necessary to add music toWhat steps are necessary to add music to a production.a production. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 6. Limited Liability CompanyLimited Liability Company Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 7. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Limited Liability CompanyLimited Liability Company:: – Combines the best elements of soleCombines the best elements of sole proprietorships, partnerships, andproprietorships, partnerships, and corporations.corporations. – The primary advantage of an LLC is that itsThe primary advantage of an LLC is that its owners have “limited liability,” meaningowners have “limited liability,” meaning that, under most circumstances, they arethat, under most circumstances, they are not personally liablenot personally liable for the debts andfor the debts and liabilities of the LLC.liabilities of the LLC.
  • 8. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Limited Liability CompanyLimited Liability Company:: – Owners are called “members.”Owners are called “members.” – ““Pass-through” taxationPass-through” taxation: profits and: profits and losses pass through to its owners, wholosses pass through to its owners, who report them on their personal tax returns.report them on their personal tax returns. – Few corporate formalities.Few corporate formalities.
  • 9. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Limited Liability CompanyLimited Liability Company:: – CreationCreation:: • File “Articles of Organization” with theFile “Articles of Organization” with the Secretary of State.Secretary of State. • Operating AgreementOperating Agreement: governs the inner-: governs the inner- workings of your LLC.workings of your LLC. • Annual filings with the Secretary of State.Annual filings with the Secretary of State.
  • 10. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Limited Liability CompanyLimited Liability Company:: – CreationCreation:: • Get a Tax I.D. from the IRSGet a Tax I.D. from the IRS • Open a biz checking account.Open a biz checking account.
  • 11. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Limited Liability CompanyLimited Liability Company:: – What will the LLC do?What will the LLC do? • Be a party to all production contracts andBe a party to all production contracts and insurance agreementsinsurance agreements • Acquire story rights (with written contracts)Acquire story rights (with written contracts) • Hire the cast and crew (with written contracts)Hire the cast and crew (with written contracts) • Rent equipmentRent equipment • Be the named party in the event of a lawsuitBe the named party in the event of a lawsuit
  • 12. ContractsContracts Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 13. Contracts:Contracts: – Like any biz, the biz of media productionLike any biz, the biz of media production involves managing working relationships.involves managing working relationships. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 14. Contracts:Contracts: – Producer manages relationships with:Producer manages relationships with: • Talent;Talent; • Unions and guilds;Unions and guilds; • Writer;Writer; • Production and post-production personnel;Production and post-production personnel; • Client who commission the work; andClient who commission the work; and • Various subcontractors and suppliers.Various subcontractors and suppliers. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 15. Contracts:Contracts: – In an ideal world, all productionIn an ideal world, all production relationships would be based solely onrelationships would be based solely on handshakes and trust.handshakes and trust. – Unfortunately, the world of production isUnfortunately, the world of production is rarely ideal.rarely ideal. – Experienced producers usually will seekExperienced producers usually will seek formal, contractual assurance theformal, contractual assurance the promised services will be completed.promised services will be completed. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 16. Contracts:Contracts: – Although they cannot guarantee theAlthough they cannot guarantee the success, production contracts can do thesuccess, production contracts can do the following:following: • Specify the responsibilities of various parties;Specify the responsibilities of various parties; • Designate delivery dates for services;Designate delivery dates for services; • Delineate compensation for various parties; andDelineate compensation for various parties; and • Provide for what happens in the event of aProvide for what happens in the event of a dispute.dispute. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 17. Contracts:Contracts: – A contract is an agreementA contract is an agreement that creates obligationsthat creates obligations between 2 or more parties.between 2 or more parties. – In addition, once theIn addition, once the contract is placed in writingcontract is placed in writing and signed by the parties, itand signed by the parties, it serves asserves as proofproof of thoseof those obligations.obligations. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 18. Contracts:Contracts: – This is why, even though oral contractsThis is why, even though oral contracts are considered valid in manyare considered valid in many circumstances, all media productioncircumstances, all media production contracts should be placed in writing.contracts should be placed in writing. – In the event of a dispute, the writtenIn the event of a dispute, the written contract provides immediate proof of thecontract provides immediate proof of the terms to which they agreed.terms to which they agreed. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 19. Contracts:Contracts: – Common contract termsCommon contract terms:: • Names of the parties (one will be your LLC)Names of the parties (one will be your LLC) • Detailed description of work to be performedDetailed description of work to be performed • Fee and payment scheduleFee and payment schedule • Term and terminationTerm and termination • Freelance / work-for-hireFreelance / work-for-hire • Dispute resolutionDispute resolution Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 20. Contracts:Contracts: – Do not have to be long and intimidating.Do not have to be long and intimidating. – Instead, they should be written in termsInstead, they should be written in terms both parties can understand.both parties can understand. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 21. Contracts:Contracts: – Should be clear and specific.Should be clear and specific. – Vague language leads toVague language leads to misunderstandings, disputes, andmisunderstandings, disputes, and lawsuits.lawsuits. – Use simple language that accuratelyUse simple language that accurately expresses the deal.expresses the deal. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 22. Contracts:Contracts: – Depending on how complicated theDepending on how complicated the matter, you don’t necessarily need amatter, you don’t necessarily need a lawyer.lawyer. – There are a number of good form booksThere are a number of good form books that media producers can use to helpthat media producers can use to help draft standard contracts.draft standard contracts. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 23. Contracts:Contracts: – Most forms are simply a starting placeMost forms are simply a starting place and need to be revised to reflect yourand need to be revised to reflect your particular transaction.particular transaction. – All “deal terms” should be included.All “deal terms” should be included. – If a provision is important,If a provision is important, get it in theget it in the contractcontract!! Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 24. Contracts:Contracts: – Bring in a lawyer whenBring in a lawyer when:: • You’re being asked to sign something you doYou’re being asked to sign something you do not fully understand;not fully understand; • You’re being asked to sign something thatYou’re being asked to sign something that commits you or your company to a long-termcommits you or your company to a long-term obligation; orobligation; or • You’re negotiating a deal that is vital to theYou’re negotiating a deal that is vital to the success or survival of your company.success or survival of your company. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 25. ReleasesReleases Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 26. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Releases:Releases: – As a rule, producers should secureAs a rule, producers should secure written releases from all performerswritten releases from all performers who appear in the production.who appear in the production. – Typical releasesTypical releases:: • Performer / ModelPerformer / Model • AudienceAudience • LocationLocation
  • 27. Releases:Releases: – The only exception would be thoseThe only exception would be those individuals who appear as faceless formsindividuals who appear as faceless forms in crowd scenes or remote shots.in crowd scenes or remote shots. – Just make sure these individuals truly doJust make sure these individuals truly do appear in a form that would not beappear in a form that would not be recognizable to family, friends, or a judgerecognizable to family, friends, or a judge or jury.or jury. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 28. Releases:Releases: – For professional actors,For professional actors, the release language isthe release language is usually included in ausually included in a complete contract thatcomplete contract that covers all aspects ofcovers all aspects of their appearance in thetheir appearance in the production.production. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 29. Releases:Releases: – Make the performers understand theMake the performers understand the terms of the release before they sign it.terms of the release before they sign it. – If a performer prefers not to sign orIf a performer prefers not to sign or demands extensive changes, finddemands extensive changes, find someone else to fill that role.someone else to fill that role. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 30. Releases:Releases: – Once all the performer releases areOnce all the performer releases are signed, store them in a secure, preferablysigned, store them in a secure, preferably fireproof, location.fireproof, location. – You should also keep additional copies ofYou should also keep additional copies of the releases in a separate secure location.the releases in a separate secure location. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 31. Releases:Releases: – Some productions, particularlySome productions, particularly recordings of live presentations orrecordings of live presentations or performances, feature shots ofperformances, feature shots of audience members.audience members. – Ideally, each audience member shouldIdeally, each audience member should execute a writtenexecute a written audience releaseaudience release.. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 32. Releases:Releases: – When logistics prevent this, you shouldWhen logistics prevent this, you should post a notice prominently at all entrancespost a notice prominently at all entrances to the production location.to the production location. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 33. Releases:Releases: – If you plan to conduct a shoot in a privateIf you plan to conduct a shoot in a private area, such as a person’s home, be sure toarea, such as a person’s home, be sure to obtain aobtain a location releaselocation release.. – Along with protecting you from charges ofAlong with protecting you from charges of trespassing, location releases serve astrespassing, location releases serve as contracts that define the terms undercontracts that define the terms under which you will be allowed to occupy thewhich you will be allowed to occupy the property.property. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 34. PermitsPermits Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 35. Permits:Permits: – Many states and municipalities requireMany states and municipalities require permits for location work, particularly forpermits for location work, particularly for work will be performed on publicwork will be performed on public thoroughfares or government property.thoroughfares or government property. – Fees vary depending on where you will beFees vary depending on where you will be shooting and your need to involve theshooting and your need to involve the police department, fire department, orpolice department, fire department, or other service agencies.other service agencies. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 36. Permits:Permits: – Begin by contacting the film and TV officeBegin by contacting the film and TV office where you will be doing your location work.where you will be doing your location work. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 37. Permits:Permits: – The agency will be able to tell you whatThe agency will be able to tell you what permits you must complete.permits you must complete. – They also offer resources such as a crewThey also offer resources such as a crew database and information on productiondatabase and information on production insurance, and tax credits.insurance, and tax credits. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 38. Permits:Permits: – If you are caught shooting without theIf you are caught shooting without the proper permits, the penalties can beproper permits, the penalties can be severe.severe. – At a minimum, you will be forced toAt a minimum, you will be forced to suspend production until the propersuspend production until the proper permits are in place.permits are in place. – Idle crew and equipment could beIdle crew and equipment could be costlycostly!! Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 39. Permits:Permits: – You may be also subjected to substantialYou may be also subjected to substantial fines.fines. – For some severe violations, particularlyFor some severe violations, particularly unauthorized use of pyrotechnics, theunauthorized use of pyrotechnics, the sanctions can include criminal penalties.sanctions can include criminal penalties. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 40. InsuranceInsurance Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 41. Insurance:Insurance: – Production InsuranceProduction Insurance:: • A special type of insurance that protects aA special type of insurance that protects a company against many accidents, mishaps,company against many accidents, mishaps, and acts of nature that can cause problemsand acts of nature that can cause problems during a media production.during a media production. • Most major film and TV producers protectMost major film and TV producers protect their investments through the purchase oftheir investments through the purchase of production insurance.production insurance. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 42. Insurance:Insurance: – Production InsuranceProduction Insurance:: • Usually costs 3-to-5% of the total productionUsually costs 3-to-5% of the total production budget.budget. • Exact cost determined by risk factors:Exact cost determined by risk factors: – E.g., extensive location work, pyrotechnics, stuntE.g., extensive location work, pyrotechnics, stunt work, etc.work, etc. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 43. Insurance:Insurance: – Production Insurance CoverageProduction Insurance Coverage:: • CastCast • Bad weatherBad weather • EquipmentEquipment • Property damageProperty damage • AutoAuto • Comprehensive general liabilityComprehensive general liability Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 44. Insurance:Insurance: – Errors and Omissions (E&O)Errors and Omissions (E&O):: • Protects producers from lawsuits that mayProtects producers from lawsuits that may arise from thearise from the contentcontent of a production,of a production, including:including: – Copyright and trademark infringement;Copyright and trademark infringement; – Libel or slander (including trade libel); andLibel or slander (including trade libel); and – Invasion of privacy.Invasion of privacy. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 45. Begin in Pre-Production PhaseBegin in Pre-Production Phase Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 46. Begin in Pre-Production Phase:Begin in Pre-Production Phase: – Music ClearanceMusic Clearance:: • Takes a long time and can cost a lot of $$$Takes a long time and can cost a lot of $$$ • Need a “synchronization license” from theNeed a “synchronization license” from the songwriter or music publisher;songwriter or music publisher; ANDAND • Need a “master use license” from theNeed a “master use license” from the recording company (if using a pre-existingrecording company (if using a pre-existing recording)recording) Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 47. Begin in Pre-Production Phase:Begin in Pre-Production Phase: – Stock footage and image clearanceStock footage and image clearance – Logo clearanceLogo clearance:: • Use of beer signs in bar scenes, for example,Use of beer signs in bar scenes, for example, must be cleared with their respectivemust be cleared with their respective trademark ownerstrademark owners Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 48. Begin in Pre-Production Phase:Begin in Pre-Production Phase: – Negotiations with potential distributorsNegotiations with potential distributors – Follow-up on production tax incentivesFollow-up on production tax incentives with state and local authoritieswith state and local authorities – Seek out post-production crewSeek out post-production crew • Editors, clearance assistants, composers, etc.Editors, clearance assistants, composers, etc. Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 49. ChecklistChecklist Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 50. Checklist:Checklist:  Form an LLC, get a tax ID, and set up aForm an LLC, get a tax ID, and set up a business checking accountbusiness checking account  Prepare a database of legal agreements toPrepare a database of legal agreements to use including various releasesuse including various releases  See what permits are required (if any) inSee what permits are required (if any) in your city and/or stateyour city and/or state Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 51. Checklist:Checklist:  Get production and E&O insuranceGet production and E&O insurance policies that fit your situationpolicies that fit your situation  Begin the music, logo, and imageBegin the music, logo, and image clearance processesclearance processes  Consult with a lawyer and an accountantConsult with a lawyer and an accountant for legal and tax issuesfor legal and tax issues Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 52. For Further Reading:For Further Reading: Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 53. For Further Reading:For Further Reading: Legal Issues in Pre-ProductionLegal Issues in Pre-Production
  • 54. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Questions? Questions?
  • 55. Legal Issues in Pre-ProductionLegal Issues in Pre-Production Thank Thank You!You!