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 could naturally indicate a "yes" answer 100% of times - the forthright answer is, "it depends" ;.Numerous producers these days are themselves film lawyers, entertainment attorneys, or other forms of lawyers, and so, often can take care of themselves. But the film producers to be worried about, are those who act as if they're entertainment lawyers - but with no 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. Because of this alone, I guess, the task function of film production counsel and entertainment lawyer remains secure.
I also suppose that there can be a couple of lucky filmmakers who, through the entire entire production process, fly under the proverbial radar without entertainment attorney accompaniment. They will seemingly avoid pitfalls and liabilities like flying bats are reputed to prevent people's hair. Through analogy, certainly one of my best 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 can be luckier than others, and some individuals can be more inclined than others to roll the dice.
But it is all too simplistic and pedestrian to share with oneself that "I'll steer clear of the significance of film lawyers if I just 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, as well as 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 lots of the harsh lessons regularly dished out by the commercial world and the film business legal.
The film and entertainment lawyer can therefore spare the producer a lot of 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. The film lawyer shouldn't be considered as simply anyone seeking to determine compliance. Sure, the entertainment lawyer may sometimes be usually the one who says "no" ;.But the entertainment attorney can be quite a positive force in the production as well.
The film lawyer can, in the span of legal representation, assist the producer as a powerful business consultant, too. If that entertainment lawyer has been a part of scores of film productions, then your film producer who hires that film lawyer entertainment attorney advantages of that very cache of experience. Yes, it often might be difficult to stretch the film budget to permit for counsel, but professional filmmakers tend to view the legal cost expenditure to be always 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. Although some film and entertainment lawyers may price themselves out of the price range of the common independent film producer, other entertainment attorneys do not.
Enough generalities. For what specific tasks must a producer typically retain a picture 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 cell phone, this entity-formation issue usually constitutes the entertainment attorney's "wake-up call" to the film producer, telling the film producer that it is time. If the producer doesn't properly create, file, and maintain a corporate or other appropriate entity whereby 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. With no shield against liability that an 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" ;.
Want it or not, the film lawyer entertainment attorney continues, "Film is just a speculative business, and the statistical most movies can fail economically - even at the San Fernando Valley film studio level. It's irrational to run a picture business or some other form of business out of one's own personal bank account" ;.Besides, it seems unprofessional, an actual concern if the producer wants to attract talent, bankers, and distributors at any point in the future.
The options of where and just how to file an entity in many cases are prompted by entertainment lawyers but then driven by situation-specific variables, including tax concerns associated with the film or film company sometimes. The film producer should let an entertainment attorney take action and take action correctly. Entity-creation is affordable. Good lawyers don't look at incorporating a client as a profit-center anyway, because of the obvious possibility of new business that an entity-creation brings. While the film producer should be aware that under U.S. law a client can fire his/her lawyer whenever you want at all, many entertainment lawyers who do the entity-creation work get asked to accomplish further work for that same client - especially when the entertainment attorney bills the very first job reasonably.
I wouldn't recommend self-incorporation by a non-lawyer - anymore than I would tell a picture producer-client what actors to hire in a film - or anymore than I would tell a D.P.-client what lens to make use of on a particular film shot. As will undoubtedly be true on a picture production set, everybody has their own job to do. And I genuinely believe that the moment the producer lets a reliable entertainment lawyer do their job, things will begin to gel for the film production in techniques couldn't even be originally foreseen by the film producer.
2. SOLICITING INVESTMENT: This dilemma also often takes its wake-up call of sorts. Let's claim that the film producer wants to produce a film with other people's money. (No, not a silly 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 this post facto from their client.
If the film producer is not a lawyer, then your producer should not really consider "trying this at home" ;.Want 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 the representation, trust in me, the film producer will have even more grave problems than conscience to deal with. Securities compliance work is among the absolute 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 can 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 when the producer gets nailed. Even while, it is shocking to see exactly how many ersatz film producers in actuality make an effort to float their 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 own sheer creativity and imagination, but usually without entertainment or film lawyer or other legal counsel. I'm sure a few of these producers consider themselves as "visionaries" while writing the prospectus. Entertainment attorneys and the remaining bar, and bench, may tend to consider them, instead, as prospective 'Defendants' ;.
Enough said.
3. DEALING WITH THE GUILDS: Let's think 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 for example Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This is a subject matter area that some film producers are designed for themselves, particularly producers with experience. However if the film producer are able to afford it, the producer should consult with a picture lawyer or entertainment lawyer prior to making even any initial contact with 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 of their documents. Failure to plan out these guild issues with film or entertainment attorney counsel ahead of time, 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 last minute, as any entertainment attorney will observe. It will be more expensive to create film counsel in, late in the afternoon - kind of like booking an airline flight several days ahead of the planned travel. A movie producer should remember that the plaintiff suing for breach of a bungled contract might not just seek money for damages, but may also seek the equitable relief of an injunction (translation: "Judge, stop this production... stop this motion picture... stop this film... Cut!").
A movie producer does not wish to suffer a 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 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 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 seen non-lawyer film producers try to accomplish their own legal drafting for their own pictures. As previously mentioned above, some few are lucky, and remain under 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 its own film and entertainment attorney counsel) may wish to see, could be the "chain of title" and development and production file, filled with all signed agreements. The production's insurance carrier could also wish to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents must certanly be written so as to survive the audience.
