Congratulations! After years of studying film techniques, cinematography and the history of film, you are ready to produce your own short film, feature film or other film project. Aside from all of the logistics and creative steps you must take to turn an idea into a film ready to distribute, there are many legal and business issues that can be daunting. Whether you are a filmmaker, producer, production company or other film professional, we have prepared a guide to walk you through the issues that will come up during the course of a film production. This guide is not intended to cover each and every single issue that could arise during the course of film production — just the major ones that tend to come up frequently. If you need specific advice on a specific issue, we suggest you contact a film attorney or give us a call to make sure you are getting reliable advice.
► Overview of Film Law
#1 – Setting Up Your Production Company
Most filmmakers and producers do not do business individually. They create production companies (often per project) that will bear the responsibility for the variety of obligations undertaken as part of the film project. This can involve renting filming space, hiring workers, actors/actresses, technical talent, sound/lighting, etc., and, of course, taking in investments to fund the film project. It is rare for any filmmaker or producer to take these legal obligations on individually. As a result, the first step in the legal aspects of film production involves the creation of a production company (often an LLC or a C- Corp) so that the production company is structured correctly. Because filmmakers and producers are often involved in multiple projects at a single time and projects can vary wildly in success and profitability, oftentimes production companies are created per project. This not only keeps the revenue streams clean but also keeps liability and obligations limited to the particular project being developed.
#2 – Screenplays and Screenwriters
Unless the filmmaker is also the screenwriter, the next step often involves optioning or purchasing a screenplay or commissioning a screenplay from a screenwriter. The most traditional legal vehicle is called an “option-purchase,” by which the producer pays X to a screenwriter for the option of developing that screenplay and exclusive rights to market and solicit it to investors for investment funding for the film project. If the producer can ultimately connect all the dots, the film production can begin. Before it does, the rights to the screenplay will be purchased in total. This usually includes all rights to the work, including the right to develop sequels, prequels, audio materials, streaming content, merchandise, etc. Specific rights can be added, excluded or carved out depending on the agreement and negotiations of the parties.
#3 – Film Finance and Film Funding
The hardest part of filmmaking from a legal or business perspective is often getting funding for the project. U.S. and state laws have strict rules limiting the extent to which filmmakers can solicit funds from the public at large, and the extent to which investors must be “accredited” investors investing in a film project. Film investors can be anyone – other entities, individuals and the filmmaker or producer themselves. Generally, during this phase, the film production is financed by selling shares or participation rights in the revenues of the film to the investors, in exchange for the investors’ contribution of cash, loans, convertible notes or other types of debt or equity-based securities. If enough money is raised to meet the film’s budget and anticipated costs/expenses, then all systems are go!
#4 – Talent, Location, Logistics, Production, Distribution
During the film production process, various agreements are necessary to handle all of the individuals and entities that are an integral part of the endeavor. These include agreements with actors/actresses, day actors, stylists, hair/makeup personnel, location/shooting arrangements, the permitting/license process, agreements with directors, sound/lighting, camera operators and of course the ubiquitous guild, union and labor law issues that have to be dealt with. If dealing with children or minors, a separate set of issues relating to minor’s rights, labor laws, Coogan trust accounts and similar matters also come into play. There are a number of sites on the Internet that purport to sell “200 agreements” for filmmakers or producers that cover all of these issues. We have downloaded them — they are terrible. They are not professionally prepared, not “legal-grade” and are missing many key provisions common to the film industry. In fact, one of the things we are often asked to do is clean up poorly written agreements that contain vague, ambiguous, or in some cases, flat-out wrong provisions that have resulted in unintended consequences or a gross distortion of the rights of one of the parties involved.
#5 – Intellectual Property
Another critical part of the filmmaking process involves getting the right intellectual property protections for the film. This will often include copyrights for all works of authorship, such as the screenplay, film itself, any promotional content – including photographs, posters, merchandise — and all other creative works that are capable of being protected through U.S. copyright laws. The company may often want to trademark its own name as well as the name of the film by filing a trademark application with the U.S. Patent & Trademark Office. Before finalizing the names, titles, etc. of a film, it is always a good idea to have the necessary searches done by your legal team to make sure that you will not have problems from existing intellectual property rights-holders.
► Getting Legal Help
If you are starting a film project and need legal assistance, contact AXIS Legal Counsel today. Axis has assisted a variety of film professionals, including filmmakers, writers, directors, crew, producers, production companies, actors, actresses, screenwriters and others with nearly every aspect of the film production process. We represent a variety of clients in the film and television industry, including actors/actresses, directors, production companies and producers, casting agencies, screenwriters, promoters, and others. Our Film & Television practice focuses on transactional matters, contract negotiations, and disputes involving the film and television community. Our Film and TV Law Practice has assisted clients with transactions and agreements involving independent films, shorts, life stories, documentaries, film festival submissions, motion picture features, television series, specials, comedy specials, reality tv shows, scripted series, and numerous others.
To get started, contact us at [email protected] or 213-403-0100 for a confidential consultation.
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