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The Pocket Lawyer for Filmmakers This page intentionally left blank The Pocket Lawyer for Filmmakers A Legal Toolkit for Independent Producers By Thomas A. Crowell, Esq. AMSTERDAM • BOSTON (cid:127) HEIDELBERG (cid:127) LONDON NEW YORK (cid:127) OXFORD (cid:127) PARIS (cid:127) SAN DIEGO SAN FRANCISCO (cid:127) SINGAPORE (cid:127) SYDNEY (cid:127) TOKYO Focal Press is an imprint of Elsevier Acquisitions Editor: Elinor Actipis Publishing Services Manager: George Morrison Senior Project Manager: Brandy Lilly Assistant Editor: Robin Weston Marketing Manager: Christine Degon Veroulis Cover Design: Alisa Andreola Focal Press is an imprint of Elsevier 30 Corporate Drive,Suite 400,Burlington,MA 01803,USA Linacre House,Jordan Hill,Oxford OX2 8DP,UK Copyright © 2007,Thomas Crowell.Published by Elsevier Inc.All rights reserved. No part of this publication may be reproduced,stored in a retrieval system,or transmitted in any form or by any means,electronic,mechanical,photocopying,recording,or otherwise,without the prior written permission of the publisher. Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford,UK: phone:(+44) 1865 843830,fax:(+44) 1865 853333,E-mail:[email protected] may also complete your request on-line via the Elsevier homepage (http://elsevier.com),by selecting “Support & Contact”then “Copyright and Permission”and then “Obtaining Permissions.” Recognizing the importance of preserving what has been written,Elsevier prints its books on acid-free paper whenever possible. Library of Congress Cataloging-in-Publication Data Crowell,Thomas. The pocket lawyer for filmmakers :a legal toolkit for independent factors / by Thomas Crowell. p.cm. Includes bibliographical references and index. ISBN 0-240-80842-8 1. Independent filmmakers—Legal status,laws,etc.—United States.2. Motion pictures—Law and legislation—United States.3. Copyright—Motion pictures—United States. I.Title. KF4298.Z9C76 2007 343.7309’9—dc22 2007007525 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN 13:978-0-240-80842-0 ISBN 10:0-240-80842-8 For information on all Focal Press publications visit our website at www.books.elsevier.com 07 08 09 10 11 5 4 3 2 1 Printed in the United States of America CONTENTS Disclaimer xxiii Dedication xxv Acknowledgments xxvii About the Author xxix PART I. OVERVIEW OF THE POCKET LAWYER INTRODUCTION 3 Filmmaker FAQs 7 PART II. LEGAL BUILDING BLOCKS Contract and Intellectual Property 11 1. COPYRIGHT AND INTELLECTUAL PROPERTY 13 What Is a Copyright? 13 Exclusive Rights Under Copyright 14 The Film Property 14 2. ISSUES IN FILM CONTRACTING 17 Deal Points 17 Who Are the Parties? 18 What Are You Getting? 18 What Are You Giving in Exchange for What You’re Getting? 19 What Rights Do You Have or Are You Giving Up? 19 What Promises Are Being Made? 20 What Protections Do You Have? 20 vi CONTENTS What Rules Govern the Business Relationship Between the Parties? 20 What Happens When Something Goes Wrong? 21 PART III. THE PRODUCTION COMPANY Filmmaking Is a Business 24 3. SETTING UP THE PRODUCTION COMPANY 25 Business Concepts 25 Types of Business Entities 26 Loan-Out Companies 31 4. YOUR PROFESSIONAL TEAM 33 Attorneys 33 Accountants 36 Insurance 37 5. FINANCING YOUR MOVIE 41 Pay for the Film Out of Pocket 42 Debt 42 Equity 43 Investors and Securities Laws 43 Step by Step:Securities Compliance 47 PART IV. DEVELOPMENT Creating, Acquiring, and Managing the Film Property 50 6. IDEA RIGHTS:(PROTECTING YOUR PITCHES AND AVOIDING IDEA “THEFT”) 51 Nondisclosure Agreements and Submission Releases 51 Goals and Deals 53 Deal Points:Submission Release 54 Deal Points:Non-Disclosure Agreement (NDA) 55 Law:Protecting Ideas and the “Novelty”Requirement 56 Business Issues:Finances and Costs 57 vii CONTENTS Negotiation Tips and Tricks 57 Step by Step:Protecting an Idea 58 Follow-Up 58 7. CREATING A SCREENPLAY 61 Writing the Screenplay by Yourself (Sole Authorship) 61 Writing Collaboration (Writing Partners and Joint Authorship) 63 Deal Points 65 The Writers Guild of America (WGA) 69 8. ACQUIRING SCREENPLAY RIGHTS 73 Buying Rights 73 The Screenplay Option/Purchase 74 Major Deal Points:The Option Agreement 75 Major Deal Points:The Purchase Agreement 77 Hiring a Screenwriter 82 Major Deal Points:Writer’s Services Agreement 84 Screenplay Adaptations 88 Major Deal Points:The Literary Property Acquisition Agreement 88 Life Story Rights 94 Major Deal Points:Life Rights Consent and Release 97 9. CHAIN OF TITLE:THE CARE AND FEEDING OF YOUR COPYRIGHT 101 What is a Chain of Title? 101 Copyright Searches and Permissions 102 Copyright Registration 106 ©—The Copyright Notice 110 Copyright Recordation,Assignments,and Transfers 110 Certificate of Authorship 113 PART V. PRE-PRODUCTION 10. HIRING CAST AND CREW—A LOT OF LAW TO WORRY ABOUT 117 Federal and State Labor and Employment Laws – An Overview 118 viii CONTENTS Unions 119 Service Agreements 120 Checklist:Elements of a Service Agreement 120 11. THE PRODUCER’S SERVICES AGREEMENT 123 Major Deal Points:Producer’s Services Agreement 124 12. THE DIRECTOR’S SERVICE AGREEMENTS 131 Major Deal Points:Director’s Services Agreement 132 13. CREW SERVICES AGREEMENT 141 Major Deal Points:Crew’s Services Agreement 142 14. PERFORMERS 149 The Screen Actors Guild (SAG) 149 The Performer’s Services Agreement 155 Major Deal Points:Actor’s Services Agreement 156 How to Get a Script to a SAG Actor 164 PART VI. PRODUCTION Quiet on the Set! 170 15. EXTRAS AND DEPICTION RELEASES 171 Depiction Releases 171 Caution – No Fraud or Misrepresentations Allowed! 175 16. LOCATIONS 177 Why You Need a Location Release 177 Getting Permission to Use a Location 179 Major Deal Points:Location Agreement 181 17. WHAT’S ON THE SET? 185 On-Set IP Infringement 185 Copyrights on the Set 187 Major Deal Points:Artwork License 190 Trademarks on the Set 192 E&O and Other Contractual Obligations 196 ix CONTENTS PART VII. POST-PRODUCTION It’s in the Can 200 18. POST-PRODUCTION STAFF 201 Hiring Post-Production Artists and Technicians Directly 201 Artists and Technicians Provided by Post-Production Facilities 201 19. MUSIC 203 Music Licensing 203 Major Deal Points:Music Licensing Agreement 207 Stock and Royalty-Free Music 210 Commissioned Music 210 Major Deal Points:Composer’s Services Agreement 211 20. FILM CLIPS AND STOCK FOOTAGE 217 Stock Footage Company 218 Movie Studio Footage 218 Major Deal Points:The Film Clip License Agreement 219 The National Archives 221 21. CREDITS & COPYRIGHT NOTICE 223 Copyright Notice and Disclaimer 223 PART VIII. DISTRIBUTION 22. SELLING YOUR FILM 227 What Distributors Do 227 Types of Distribution Deals 228 The Money Pipeline 229 How Does the Money Get from a Movie Theater to the ProducerVia a Net Distribution Deal? 229 Distribution Rights Acquisition Agreement 231 Major Deal Points:Distribution Agreement 231 Tips for Attracting a Distributor 240

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* You have an idea you want to pitch to a production company; how do you safeguard your concept?* There's a painting in the background of your independent film; is it necessary to clear the rights? * The screenplay you and a friend wrote gets optioned; how do you split the proceeds fairly?* How do y
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361 Pages·2007·1.51 MB·English
by  Thomas A. Crowell
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The Pocket Lawyer for Filmmakers This page intentionally left blank The Pocket Lawyer for Filmmakers A Legal Toolkit for Independent Producers By Thomas A. Crowell, Esq. AMSTERDAM • BOSTON (cid:127) HEIDELBERG (cid:127) LONDON NEW YORK (cid:127) OXFORD (cid:127) PARIS (cid:127) SAN DIEGO SAN FRANCISCO (cid:127) SINGAPORE (cid:127) SYDNEY (cid:127) TOKYO Focal Press is an imprint of Elsevier Acquisitions Editor: Elinor Actipis Publishing Services Manager: George Morrison Senior Project Manager: Brandy Lilly Assistant Editor: Robin Weston Marketing Manager: Christine Degon Veroulis Cover Design: Alisa Andreola Focal Press is an imprint of Elsevier 30 Corporate Drive,Suite 400,Burlington,MA 01803,USA Linacre House,Jordan Hill,Oxford OX2 8DP,UK Copyright © 2007,Thomas Crowell.Published by Elsevier Inc.All rights reserved. No part of this publication may be reproduced,stored in a retrieval system,or transmitted in any form or by any means,electronic,mechanical,photocopying,recording,or otherwise,without the prior written permission of the publisher. Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford,UK: phone:(+44) 1865 843830,fax:(+44) 1865 853333,E-mail:[email protected] may also complete your request on-line via the Elsevier homepage (http://elsevier.com),by selecting “Support & Contact”then “Copyright and Permission”and then “Obtaining Permissions.” Recognizing the importance of preserving what has been written,Elsevier prints its books on acid-free paper whenever possible. Library of Congress Cataloging-in-Publication Data Crowell,Thomas. The pocket lawyer for filmmakers :a legal toolkit for independent factors / by Thomas Crowell. p.cm. Includes bibliographical references and index. ISBN 0-240-80842-8 1. Independent filmmakers—Legal status,laws,etc.—United States.2. Motion pictures—Law and legislation—United States.3. Copyright—Motion pictures—United States. I.Title. KF4298.Z9C76 2007 343.7309’9—dc22 2007007525 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN 13:978-0-240-80842-0 ISBN 10:0-240-80842-8 For information on all Focal Press publications visit our website at www.books.elsevier.com 07 08 09 10 11 5 4 3 2 1 Printed in the United States of America CONTENTS Disclaimer xxiii Dedication xxv Acknowledgments xxvii About the Author xxix PART I. OVERVIEW OF THE POCKET LAWYER INTRODUCTION 3 Filmmaker FAQs 7 PART II. LEGAL BUILDING BLOCKS Contract and Intellectual Property 11 1. COPYRIGHT AND INTELLECTUAL PROPERTY 13 What Is a Copyright? 13 Exclusive Rights Under Copyright 14 The Film Property 14 2. ISSUES IN FILM CONTRACTING 17 Deal Points 17 Who Are the Parties? 18 What Are You Getting? 18 What Are You Giving in Exchange for What You’re Getting? 19 What Rights Do You Have or Are You Giving Up? 19 What Promises Are Being Made? 20 What Protections Do You Have? 20 vi CONTENTS What Rules Govern the Business Relationship Between the Parties? 20 What Happens When Something Goes Wrong? 21 PART III. THE PRODUCTION COMPANY Filmmaking Is a Business 24 3. SETTING UP THE PRODUCTION COMPANY 25 Business Concepts 25 Types of Business Entities 26 Loan-Out Companies 31 4. YOUR PROFESSIONAL TEAM 33 Attorneys 33 Accountants 36 Insurance 37 5. FINANCING YOUR MOVIE 41 Pay for the Film Out of Pocket 42 Debt 42 Equity 43 Investors and Securities Laws 43 Step by Step:Securities Compliance 47 PART IV. DEVELOPMENT Creating, Acquiring, and Managing the Film Property 50 6. IDEA RIGHTS:(PROTECTING YOUR PITCHES AND AVOIDING IDEA “THEFT”) 51 Nondisclosure Agreements and Submission Releases 51 Goals and Deals 53 Deal Points:Submission Release 54 Deal Points:Non-Disclosure Agreement (NDA) 55 Law:Protecting Ideas and the “Novelty”Requirement 56 Business Issues:Finances and Costs 57 vii CONTENTS Negotiation Tips and Tricks 57 Step by Step:Protecting an Idea 58 Follow-Up 58 7. CREATING A SCREENPLAY 61 Writing the Screenplay by Yourself (Sole Authorship) 61 Writing Collaboration (Writing Partners and Joint Authorship) 63 Deal Points 65 The Writers Guild of America (WGA) 69 8. ACQUIRING SCREENPLAY RIGHTS 73 Buying Rights 73 The Screenplay Option/Purchase 74 Major Deal Points:The Option Agreement 75 Major Deal Points:The Purchase Agreement 77 Hiring a Screenwriter 82 Major Deal Points:Writer’s Services Agreement 84 Screenplay Adaptations 88 Major Deal Points:The Literary Property Acquisition Agreement 88 Life Story Rights 94 Major Deal Points:Life Rights Consent and Release 97 9. CHAIN OF TITLE:THE CARE AND FEEDING OF YOUR COPYRIGHT 101 What is a Chain of Title? 101 Copyright Searches and Permissions 102 Copyright Registration 106 ©—The Copyright Notice 110 Copyright Recordation,Assignments,and Transfers 110 Certificate of Authorship 113 PART V. PRE-PRODUCTION 10. HIRING CAST AND CREW—A LOT OF LAW TO WORRY ABOUT 117 Federal and State Labor and Employment Laws – An Overview 118 viii CONTENTS Unions 119 Service Agreements 120 Checklist:Elements of a Service Agreement 120 11. THE PRODUCER’S SERVICES AGREEMENT 123 Major Deal Points:Producer’s Services Agreement 124 12. THE DIRECTOR’S SERVICE AGREEMENTS 131 Major Deal Points:Director’s Services Agreement 132 13. CREW SERVICES AGREEMENT 141 Major Deal Points:Crew’s Services Agreement 142 14. PERFORMERS 149 The Screen Actors Guild (SAG) 149 The Performer’s Services Agreement 155 Major Deal Points:Actor’s Services Agreement 156 How to Get a Script to a SAG Actor 164 PART VI. PRODUCTION Quiet on the Set! 170 15. EXTRAS AND DEPICTION RELEASES 171 Depiction Releases 171 Caution – No Fraud or Misrepresentations Allowed! 175 16. LOCATIONS 177 Why You Need a Location Release 177 Getting Permission to Use a Location 179 Major Deal Points:Location Agreement 181 17. WHAT’S ON THE SET? 185 On-Set IP Infringement 185 Copyrights on the Set 187 Major Deal Points:Artwork License 190 Trademarks on the Set 192 E&O and Other Contractual Obligations 196 ix CONTENTS PART VII. POST-PRODUCTION It’s in the Can 200 18. POST-PRODUCTION STAFF 201 Hiring Post-Production Artists and Technicians Directly 201 Artists and Technicians Provided by Post-Production Facilities 201 19. MUSIC 203 Music Licensing 203 Major Deal Points:Music Licensing Agreement 207 Stock and Royalty-Free Music 210 Commissioned Music 210 Major Deal Points:Composer’s Services Agreement 211 20. FILM CLIPS AND STOCK FOOTAGE 217 Stock Footage Company 218 Movie Studio Footage 218 Major Deal Points:The Film Clip License Agreement 219 The National Archives 221 21. CREDITS & COPYRIGHT NOTICE 223 Copyright Notice and Disclaimer 223 PART VIII. DISTRIBUTION 22. SELLING YOUR FILM 227 What Distributors Do 227 Types of Distribution Deals 228 The Money Pipeline 229 How Does the Money Get from a Movie Theater to the ProducerVia a Net Distribution Deal? 229 Distribution Rights Acquisition Agreement 231 Major Deal Points:Distribution Agreement 231 Tips for Attracting a Distributor 240

Description:
* You have an idea you want to pitch to a production company; how do you safeguard your concept?* There's a painting in the background of your independent film; is it necessary to clear the rights? * The screenplay you and a friend wrote gets optioned; how do you split the proceeds fairly?* How do y
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