Does the film producer really need 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" ;.A number of producers these days are themselves film lawyers, entertainment attorneys, and other kinds of lawyers, and so, often can look after themselves. But the film producers to bother about, are the ones who behave as if they're entertainment lawyers - but without a license or entertainment attorney legal experience to back it up. Filmmaking and film practice comprise an industry wherein these days, 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 employed by the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, I suppose, the work function of film production counsel and entertainment lawyer is still secure.
I also guess that there will be a couple of lucky filmmakers who, through the entire production process, fly underneath the proverbial radar without entertainment attorney accompaniment. They'll seemingly avoid pitfalls and liabilities like flying bats are reputed to prevent people's hair. Through analogy, among my close friends hasn't had any medical insurance for decades, and he is still who is fit and economically afloat - this week, anyway. Taken in the aggregate, some individuals will be luckier than others, and some individuals will be more inclined than others to roll the dice.
But it is all too simplistic and pedestrian to inform oneself that "I'll avoid the importance of film lawyers if I merely stay out of trouble and be careful" ;.An activity lawyer, especially in the realm of film (or other) production, can be a real constructive asset to a motion picture producer, along with the film producer's personally-selected inoculation against potential liabilities. If the producer's entertainment attorney has been through the procedure of film production previously, then that entertainment lawyer has recently 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 - this is actually the absolute key - skilled, thoughtful and complete documentation of all film production and related activity law. The film lawyer should not be considered as simply the individual seeking to ascertain compliance. Sure, the entertainment lawyer may sometimes be the one who says "no" ;.But the entertainment attorney can be a positive force in the production as well.
The film lawyer can, in the span 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 your film producer who hires that film lawyer entertainment attorney benefits from that very cache of experience. Yes, it often might be difficult to stretch the film budget allowing for counsel, but professional filmmakers tend to view the legal cost expenditure to be always a fixed, predictable, and necessary one - comparable to the fixed obligation of rent for the production office, or the expense of film for the cameras. While some film and entertainment lawyers may price themselves out 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 film "Wall Street" when speaking to 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 it is time. If the producer doesn't properly create, file, and maintain a corporate and other appropriate entity by 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 your film producer is potentially hurting himself or herself. Minus the shield against liability that an entity can provide, the entertainment attorney opines, the film producer's personal assets (like house, car, bank account) are in danger 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 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 seems unprofessional, a genuine concern if the producer really wants to attract talent, bankers, and distributors at any point in the future.
Your choices of where and just how to file an entity in many cases are 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 amusement attorney get it done and get it done correctly. Entity-creation is affordable. Good lawyers don't look at incorporating a consumer as a profit-center anyway, because of the obvious possibility of new business that an entity-creation brings. While the film producer should know 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 with a non-lawyer - any longer than I'd tell a film producer-client what actors to hire in a motion picture - or any longer than I'd tell a D.P.-client what lens to use on a certain film shot. As is going to be true on a film production set, everybody has their very own job to do. And I feel that as soon as the producer lets a reliable entertainment lawyer do his or her job, things will begin to gel for the film production in ways that couldn't even be originally foreseen by the film producer.
2. SOLICITING INVESTMENT: This issue also often is really a wake-up call of sorts. Let's say that the film producer wants to produce a motion picture with other people's money. (No, not an unusual scenario). The film producer will likely start soliciting funds for the movie from so-called "passive" investors in numerous possible ways, and may actually start collecting some monies as a result. Sometimes this occurs prior to the entertainment lawyer hearing about any of it post facto from his or her client.
If the film producer is not just a lawyer, then your 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 cornerstone of that representation, believe me, the film producer can have a lot 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. Regardless of how great the film script is, it's never worth monetary fines and jail time - not to mention the veritable unspooling of the unfinished film if and once the producer gets nailed. All the while, it is shocking to see just how many ersatz film producers in actuality make an effort to float their very own "investment prospectus", detailed 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 very own sheer creativity and imagination, but usually without any entertainment or film lawyer and other legal counsel. I'm sure a few of these producers think of themselves as "visionaries" while writing the prospectus. Entertainment attorneys and the remaining bar, and bench, may tend to think of 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 considered a signatory to collective bargaining agreements of unions such as for example 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 are able to afford it, the producer should consult with a film lawyer or entertainment lawyer before making even any initial contact 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 some of their documents. Failure to plan out these guild difficulties with film or entertainment attorney counsel in advance, could lead to problems and expenses that sometimes make it cost-prohibitive to thereafter continue with the picture's further production.
4. CONTRACTUAL AFFAIRS GENERALLY: A movie production's agreements should all take writing, and not saved before the eleventh hour, as any entertainment attorney will observe. It will be more expensive to bring film counsel in, late in the afternoon - sort of like booking an airline flight several days ahead of the planned travel. A movie producer should remember a plaintiff suing for breach of a bungled contract might not merely 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 movie producer doesn't desire to suffer a straight back claim for talent compensation, or a disgruntled location-landlord, or state child labor authorities - threatening to enjoin or shut the film production down for reasons that has been easily avoided by careful planning, drafting, research, and communication with one's film lawyer or entertainment lawyer. The movie production's agreements should really be drafted properly by the entertainment attorney, and should really be customized to encompass the special characteristics of the production.
As an amusement lawyer, I have seen non-lawyer film producers try to complete their very own legal drafting for their very own pictures. As previously mentioned above, some few are lucky, and remain underneath the proverbial radar. But think about this: if the film producer sells or options the project, one of the first things that the film distributor or film buyer (or a unique film and entertainment attorney counsel) may wish to see, could be the "chain of title" and development and production file, detailed with all signed agreements. The production's insurance carrier could also desire to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents must certanly be written to be able to survive the audience.
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