Does the film producer really require a film lawyer or entertainment attorney as a matter of professional practice? An activity lawyer's own bias and my stacking of the question notwithstanding, which could naturally indicate a "yes" answer 100% of times - the forthright answer is, "it depends" ;.Several producers today are themselves film lawyers, entertainment attorneys, and other types of lawyers, and so, often can look after themselves. Nevertheless the film producers to bother about, are the people who become if they are entertainment lawyers - but with out a license or entertainment attorney legal experience to back it up. Filmmaking and movie practice comprise an industry wherein today, unfortunately, "bluff" and "bluster" sometimes serve as substitutes for actual knowledge and experience. But "bluffed" documents and inadequate production procedures won't ever escape the trained eye of entertainment attorneys doing work for the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, I suppose, the job function of film production counsel and entertainment lawyer remains secure.
I also suppose that there will always be a couple of lucky filmmakers who, through the entire entire production process, fly beneath the proverbial radar without entertainment attorney accompaniment. They'll seemingly avoid pitfalls and liabilities like flying bats are reputed to prevent people's hair. By means of analogy, among my close friends hasn't had any medical insurance for a long time, and he is still who is fit and economically afloat - this week, anyway lawyers. Taken in the aggregate, some people will always be luckier than others, and some people will always be more inclined than others to roll the dice.
But it is all too simplistic and pedestrian to tell oneself that "I'll steer clear of the requirement for film lawyers if I simply stay out of trouble and be careful" ;.An activity lawyer, especially in the realm of film (or other) production, can be quite a real constructive asset to a film producer, in addition to the film producer's personally-selected inoculation against potential liabilities. If the producer's entertainment attorney has been through the process of film production previously, then that entertainment lawyer has recently learned many of the harsh lessons regularly dished out by the commercial world and the film business.
The film and entertainment lawyer can therefore spare the producer a lot of pitfalls. How? By clear thinking, careful planning, and - here is the absolute key - skilled, thoughtful and complete documentation of most film production and related activity. The film lawyer should not be looked at as simply the person seeking to ascertain compliance. Sure, the entertainment lawyer may sometimes be the one who says "no" ;.Nevertheless the entertainment attorney can be quite a positive force in the production as well.
The film lawyer can, in the course of legal representation, assist the producer as a fruitful business consultant, too. If that entertainment lawyer has been a part of scores of film productions, then the movie producer who hires that film lawyer entertainment attorney advantages of that very cache of experience. Yes, it sometimes might be difficult to stretch the film budget to permit for counsel, but professional filmmakers tend to see the legal cost expenditure to become a fixed, predictable, and necessary one - comparable to the fixed obligation of rent for the production office, or the cost of film for the cameras. Though some film and entertainment lawyers may price themselves from the price range of the typical independent film producer, other entertainment attorneys do not.
Enough generalities. For what specific tasks must a maker typically retain a film lawyer and entertainment attorney?:
1. INCORPORATION, OR FORMATION OF AN "LLC": To paraphrase Michael Douglas's Gordon Gekko character in the movie "Wall Street" when talking with Bud Fox while on the morning beach on the oversized mobile phone, this entity-formation issue usually constitutes the entertainment attorney's "wake-up call" to the film producer, telling the film producer that it's time. If the producer doesn't properly create, file, and maintain a corporate and other appropriate entity through which to conduct business, and if the film producer doesn't thereafter make every effort to keep that entity shielded, says the entertainment lawyer, then the film producer is potentially hurting himself or herself. Without the shield against liability that the entity can offer, the entertainment attorney opines, the movie producer's personal assets (like house, car, bank account) are at an increased risk and, in a worst-case scenario, could ultimately be seized to satisfy the debts and liabilities of the film producer's business. Quite simply:
Patient: "Doctor, it hurts my head when I really do that" ;.
Doctor: "So? Don't do that" ;.
Like it or not, the film lawyer entertainment attorney continues, "Film is really a speculative business, and the statistical majority of motion pictures can fail economically - even at the San Fernando Valley film studio level. It is irrational to operate a film business or some other type of business out of one's own personal bank account" ;.Besides, it looks unprofessional, a genuine concern if the producer wants to attract talent, bankers, and distributors at any point in the future.
The options of where and how to file an entity in many cases are prompted by entertainment lawyers but then driven by situation-specific variables, including tax concerns relating to the film or movie company sometimes. The film producer should let an amusement attorney do it and do it correctly. Entity-creation is affordable. Good lawyers don't look at incorporating a client as a profit-center anyway, because of the obvious prospect of new business that the entity-creation brings. Whilst the film producer should be aware that under U.S. law a client can fire his/her lawyer anytime at all, many entertainment lawyers who do the entity-creation work get asked to complete further benefit that same client - especially if the entertainment attorney bills the very first job reasonably.
I wouldn't recommend self-incorporation by a non-lawyer - any longer than I would tell a film producer-client what actors to hire in a film - or any longer than I would tell a D.P.-client what lens to make use of on a particular film shot. As will soon be true on a film production set, everybody has their own job to do. And I think that when the producer lets a competent entertainment lawyer do his or her job, things will start to gel for the film production in techniques couldn't even be originally foreseen by the movie producer.
2. SOLICITING INVESTMENT: This dilemma also often takes its wake-up call of sorts. Let's claim that the film producer wants to create a film with other people's money. (No, not an unusual scenario). The film producer will more than likely start soliciting funds for the movie from so-called "passive" investors in numerous possible ways, and could possibly start collecting some monies as a result. Sometimes this occurs prior to the entertainment lawyer hearing about this post facto from his or her client.
If the film producer is not a lawyer, then the producer should not think of "trying this at home" ;.Like it or not, the entertainment lawyer opines, the film producer will thereby be selling securities to people. If the producer promises investors some pie-in-the-sky results in the context of this inherently speculative business called film, and then collects money on the foundation of the representation, trust in me, the film producer can have much more grave problems than conscience to deal with. Securities compliance work is among the most difficult of matters faced by an amusement attorney.
As both entertainment lawyers and securities lawyers will opine, botching a solicitation for film (or any other) investment might have severe and federally-mandated consequences. Irrespective of how great the film script is, it's never worth monetary fines and jail time - and of course the veritable unspooling of the unfinished movie if and when the producer gets nailed. All the while, it is shocking to see just how many ersatz film producers in the real world try to float their own "investment prospectus", complete with boastful anticipated multipliers of the box office figures of the famed motion pictures "E.T." and "Jurassic Park" combined. They draft these monstrosities with their own sheer creativity and imagination, but usually without any entertainment or film lawyer and other legal counsel. I'm sure many of these producers think of themselves as "visionaries" while writing the prospectus. Entertainment attorneys and the rest of the bar, and bench, may tend to think about them, instead, as prospective 'Defendants' ;.
Enough said.
3. DEALING WITH THE GUILDS: Let's assume that the film producer has decided, even without entertainment attorney guidance yet, that the production entity should be a signatory to collective bargaining agreements of unions such as Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This is a subject matter area that some film producers can handle themselves, particularly producers with experience. However, if the film producer are able to afford it, the producer should consult with a film lawyer or entertainment lawyer prior to making even any initial connection with the guilds. The producer should certainly consult with an amusement attorney or film lawyer ahead of issuing any writings to the guilds, or signing any one of their documents. Failure to plan out these guild difficulties with film or entertainment attorney counsel beforehand, could cause problems and expenses that sometimes allow it to be cost-prohibitive to thereafter continue with the picture's further production.
4. CONTRACTUAL AFFAIRS GENERALLY: A film production's agreements should all be in writing, and not saved before eleventh hour, as any entertainment attorney will observe. It will be more expensive to create film counsel in, late in your day - sort of like booking an airline flight a few days ahead of the planned travel. A film producer should remember a plaintiff suing for breach of a bungled contract might not just seek money for damages, but can also seek the equitable relief of an injunction (translation: "Judge, stop this production... stop this motion picture... stop this film... Cut!").
A film producer does not want to suffer a back claim for talent compensation, or even a disgruntled location-landlord, or state child labor authorities - threatening to enjoin or shut the movie production down for reasons that may have been easily avoided by careful planning, drafting, research, and communication with one's film lawyer or entertainment lawyer. The movie production's agreements must certanly be drafted properly by the entertainment attorney, and must certanly be customized to encompass the special characteristics of the production.
As an amusement lawyer, I have observed non-lawyer film producers try to complete their own legal drafting for their own pictures. As mentioned above, some few are lucky, and remain beneath the proverbial radar. But look at this: if the film producer sells or options the project, among the first things that the film distributor or film buyer (or a unique film and entertainment attorney counsel) will want to see, is the "chain of title" and development and production file, complete with all signed agreements. The production's insurance carrier could also want to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents should be written to be able to survive the audience.
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