Does the film producer really require a film lawyer or entertainment attorney as a matter of professional practice? An entertainment lawyer's own bias and my stacking of the question notwithstanding, which can naturally indicate a "yes" answer 100% of that time period - the forthright answer is, "it depends" ;.Numerous producers nowadays are themselves film lawyers, entertainment attorneys, and other forms of lawyers, and so, often can look after themselves. However the film producers to bother about, are the ones who become if they are entertainment lawyers - but without a license or entertainment attorney legal experience to back it up. Filmmaking and film practice comprise an industry wherein nowadays, unfortunately, "bluff" and "bluster" sometimes serve as substitutes for actual knowledge and experience. But "bluffed" documents and inadequate production procedures won't escape the trained eye of entertainment attorneys working for the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, I guess, the work function of film production counsel and entertainment lawyer is still secure.
I also suppose that there can be a few lucky filmmakers who, through the entire production process, fly beneath the proverbial radar without entertainment attorney accompaniment. They will seemingly avoid pitfalls and liabilities like flying bats are reputed in order to avoid people's hair. By means of analogy, certainly one of my close friends hasn't had any medical health insurance for years, and he's still in good shape and economically afloat - this week, anyway. Taken in the aggregate, many people can be luckier than others, and many people can be more inclined than others to roll the dice.
But it's all too simplistic and pedestrian to tell oneself that "I'll steer clear of the significance of film lawyers if I simply stay out of trouble and be careful" ;.An entertainment lawyer, especially in the realm of film (or other) production, can be quite a real constructive asset to a film producer, along with the film producer's personally-selected inoculation against potential liabilities. If the producer's entertainment attorney has been through the method of film production previously, then that entertainment lawyer has already learned most 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 many of those pitfalls. How? By clear thinking, careful planning, and - here is the absolute key - skilled, thoughtful and complete documentation of all film production and related activity. The film lawyer shouldn't be looked at as simply anyone seeking to ascertain compliance. Sure, the entertainment lawyer may sometimes be the one who says "no" ;.However the entertainment attorney can be quite a positive force in the production as well.
The film lawyer can, in the length of legal representation, assist the producer as a highly effective business consultant, too. If that entertainment lawyer has been associated with scores of film productions, then a film producer who hires that film lawyer entertainment attorney advantages from that very cache of experience. Yes, it often may be difficult to stretch the film budget allowing for counsel, but professional filmmakers tend to see the legal cost expenditure to be a fixed, predictable, and necessary one - similar to the fixed obligation of rent for the production office, or the price of film for the cameras. While some film and entertainment lawyers may price themselves out from the cost range of the common independent film producer, other entertainment attorneys do not.
Enough generalities. For what specific tasks must a maker typically retain a video lawyer and entertainment attorney?:
1. INCORPORATION, OR FORMATION OF AN "LLC": To paraphrase Michael Douglas's Gordon Gekko character in the film "Wall Street" when talking with Bud Fox while on the morning beach on the oversized cellular phone, this entity-formation issue usually constitutes the entertainment attorney's "wake-up call" to the film producer, telling the film producer it is 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 a film producer is potentially hurting himself or herself. Minus the shield against liability that the entity can offer, the entertainment attorney opines, the film producer's personal assets (like house, car, bank account) are at 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 a speculative business, and the statistical most of movies can fail economically - even at the San Fernando Valley film studio level. It is irrational to run a video business or some other kind of business out of one's own personal bank account" ;.Besides, it seems unprofessional, an actual concern if the producer desires to attract talent, bankers, and distributors at any point in the future.
The choices of where and just how to file an entity are often prompted by entertainment lawyers but driven by situation-specific variables, including tax concerns concerning the film or film company sometimes. The film producer should let an entertainment attorney do it and do it correctly. Entity-creation is affordable. Good lawyers don't look at incorporating a consumer as a profit-center anyway, due to the obvious prospect of new business that the entity-creation brings attorney. While the film producer should remember that under U.S. law a consumer can fire his/her lawyer anytime at all, many entertainment lawyers who do the entity-creation work get asked to complete further work for that same client - particularly when the entertainment attorney bills the very first job reasonably.
I wouldn't recommend self-incorporation by way of a non-lawyer - any longer than I would tell a video producer-client what actors to hire in a film - or any longer than I would tell a D.P.-client what lens to utilize on a certain film shot. As will be true on a video production set, everybody has their very own job to do. And I genuinely believe that the moment 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 film producer.
2. SOLICITING INVESTMENT: This matter also often is really a wake-up call of sorts. Let's claim that the film producer wants to create a film with other people's money. (No, not a unique 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 before the entertainment lawyer hearing about it post facto from his or her client.
If the film producer is not just a lawyer, then a producer should not really 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 with this inherently speculative business called film, and then collects money on the basis of this representation, believe 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 entertainment 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. No matter how great the film script is, it's never worth monetary fines and jail time - and undoubtedly the veritable unspooling of the unfinished film if and once the producer gets nailed. Even while, it's shocking to see just how many ersatz film producers in actuality try to float their very own "investment prospectus", filled with boastful anticipated multipliers of the box office figures of the famed movies "E.T." and "Jurassic Park" combined. They draft these monstrosities with their very own sheer creativity and imagination, but usually with no entertainment or film lawyer and other legal counsel. I'm certain that some of those 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 believe that the film producer has decided, even without entertainment attorney guidance yet, that the production entity will have to be a signatory to collective bargaining agreements of unions such as for instance Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This can be a material area that some film producers can handle themselves, particularly producers with experience. If the film producer can afford it, the producer should consult with a video lawyer or entertainment lawyer prior to making even any initial experience of the guilds. The producer should certainly consult with an entertainment attorney or film lawyer prior to 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 ahead of time, could lead to problems and expenses that sometimes ensure it is cost-prohibitive to thereafter continue with the picture's further production.
4. CONTRACTUAL AFFAIRS GENERALLY: A video production's agreements should all be in writing, and not saved before last second, as any entertainment attorney will observe. It may well be more expensive to create film counsel in, late in the afternoon - sort of like booking an airline flight several days before the planned travel. A video producer should remember that the plaintiff suing for breach of a bungled contract might not just seek money for damages, but may possibly also seek the equitable relief of an injunction (translation: "Judge, stop this production... stop this motion picture... stop this film... Cut!").
A video producer doesn't desire to suffer a straight back claim for talent compensation, or perhaps a disgruntled location-landlord, or state child labor authorities - threatening to enjoin or shut the film production down for reasons that could have been easily avoided by careful planning, drafting, research, and communication with one's film lawyer or entertainment lawyer. The movie production's agreements ought to be drafted with care by the entertainment attorney, and ought to be customized to encompass the special characteristics of the production.
As an entertainment lawyer, I have experienced non-lawyer film producers try to complete their very own legal drafting for their very own pictures. As stated above, some few are lucky, and remain beneath the proverbial radar. But think about this: if the film producer sells or options the project, one of many first items that the film distributor or film buyer (or its own film and entertainment attorney counsel) will want to see, is the "chain of title" and development and production file, filled with all signed agreements. The production's insurance carrier can also desire to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents must be written to be able to survive the audience.
