Learn the Law
Disclaimer: I only offer the following as general guidelines. I am not a lawyer and the following has not been checked by a lawyer so please seek the services of a qualified entertainment lawyer about any of the following bits of advice if in doubt.
This page has articles on several areas where beginning filmmakers often get themselves into trouble but is not comprehensive. I strongly suggest you get a good book on the business and legal issues involved in filmmaking. There are several good ones but the best of the best is The Independent Film Producer's Survival Guide: A Business and Legal Sourcebook.
See my link at the bottom of this page for more information.
Intellectual property and other traps for the filmmaker
One of the commonest ways that beginning filmmakers screw themselves concerns the ownership of the sights and sounds that are in their movie. After you've created your masterpiece that showed at Sundance to thunderous applause and standing ovations and all the acquisition agents from all the distributors have waved big checks in your face and you finally picked one of them, you have at least one more hoop to jump through.
You will need to qualify for Errors and Omissions (E & O) insurance. This is a liability insurance policy that the distributor will take out that says if it turns out that if you used something in your film you didn't have rights to, the insurance company will pay the rightful owner whatever the courts decide is a proper price (plus punitive damages, no doubt.)
The insurance company will first examine all your contracts and grill you about every image and every sound to be sure you had the right to use them.
Movie Music seems to be the biggest problem for filmmakers.
We are surrounded by music, download it to our iPods, play it on our computers. We fall in love with songs and beginning filmmakers often create stories around a favorite song and write the song right into the script. You may think the band will be flattered that you like their song and be honored to have you use it, or that they may not even know you used it.
Sorry folks. Licensing music for use in films is very big business. Muscians want a lot of money for you to use their sounds in your film. Even a minor hit from years ago can cost $10,000 and big hits by recent big entertainers start at $50,000 and go way up. If you wait until after the film is made and the film is sold the price will go up even higher because they know they have you over a barrel.
The cost of licensing music may be bigger than the rest of your budget.
Get the rights to your music up front. If your movie really does require that particular song, and sometimes one particular song makes a big difference, then negotiate the price up front contingent on the sale of the film. Then tell the distributor that they will have to pay that much extra to get your film. Now it's a negotiation point where who pays the cost of the song can be worked out, or possibly they will find another song for less money that works well enough.
Don't get upset. It's just business.
When you film a scene make sure there is no music playing in the background, no radio stations, no television broadcasts. Getting the rights to have a television show going in the background can be just as expensive as getting song rights. You want to add the music later anyway so it will be in proper balance.
And why do you really need THAT song? There certainly are struggle bands or music composers in your local area that could give you some wonderful original music. Ask your friends, audition some of the bands. Someone out there really would be flattered to have their song in your film and charge you little or nothing. Just make sure you get it in writing.
People who recognizably appear in your film must be under contract. If your film has a shot of your actors talking to each other in a park and in the background was a pair of lovers, kissing on a bench, who's faces are even slightly recognizable, you better get them to sign a release contract.
When your film comes out and the man's wife recognizes him making out with his secretary you will be in the middle of one big ugly legal battle and it will cost you. You can get away with distant crowd scenes where there is a great mass of humanity and faces are too small to clearly make out but always try to avoid it. Throw the background out of focus or avoid the shot altogether.
Telephone numbers are another possible issue. If one of your characters tells his phone number to another character or writes it out in a visible way AND that is the phone number of some actual human being it is considered invasion of privacy. S/he might sue so you will never get E & O insurance.
Either don't have your characters speak or write the entire number in a way that is not decypherable, or use 555 as the beginning of the number. There are no seven digit phone numbers that start with 555 so you can use a number like 555-9283 and be safe.
Recognizable products or places
The law gets fuzzy here, but there are laws that can allow you to be sued if you use a corporate symbol in a manner that casts it in a bad light. You see product placement in movies and on TV all the time but those are all carefully negotiated ahead of time. The owners of the products are in full understanding of how the product will be displayed and used.
If you want to use a brand product in your movie then talk to the owner. It may not be worth the effort by the time you pay for a lawyer to talk to their lawyers and jump through many hoops. And don't expect to be paid for displaying the products unless you have already sold the film and can prove what the product placement will be worth it to the owners.
Play it safe and save yourself a potential problems later. If you want to include any recognizable product, building, trademark, etc. get written permission from the owner in writing or don't use it. If your friend is the manager of the local Starbucks and says you can film a scene in the store after hours, make sure you replace any signs that make it recognizable as a Starbucks. Better yet find a local mom & pop owned coffee shop that will give you full permission.
Time to use that copy of Photoshop to create your own phony labels for the beer cans and ketchup bottles.
Finding an Entertainment Lawyer|
Most entertainment lawyers are located in Hollywood or New York but options closer to home are probably available. Note that I do not have direct experience with any of these law firms or individuals and will not accept any liability for damages resulting from the use of their services. You will need to do your own research to see if they can be of value to you.
Lawyers.Com offers an excellent way to search for entertainment lawyers in your local area. Enter the type of lawyer and the city/state where you live and you will get a list of attorneys to contact in your area. You should always interview the lawyer and get and check references before you hire them.
Mark Litwak offers many interesting articles on various aspects of entertainment law on his site.
Gordon P. Firemark in Los Angeles offers an entertainment law newletter you can subscribe to.
Heraty Law out of New York claims to work with small businesses and has a selection of articles on entertainment law on the web site. From their links page they look like they have a sense of humor.
Harris Tulchin is an entertainment attorney who offers to answer entertainment law questions by email. Mr. Tulchin is also one of the co-authors of The Independent Film Producer's Survival Guide which is probably the best source of answers to how-to business questions regarding independent filmmaking, and entertainment law in particular.
The Pocket Lawyer for Filmmakers: A Legal Toolkit for Independent Producers|
- How can you use a state's film tax credits to fund your film? SEE PAGE 63.
- You have an idea you want to pitch to a production company; how do you safeguard your concept? SEE PAGE 77.
- How can you fund your production with product placement? SEE PAGE 157.
- How do you get a script to popular Hollywood actors and deal with their agents? SEE PAGE 222.
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This new edition features:
- New sections on product placement, film tax credits and production incentive financing, Letters of Intent, and DIY distribution (four-walling, YouTube, Download-to-own, Amazon.com, iTunes, and Netflix)
- Updated case law
- Even more charts and graphics to help you find the information you need even more quickly.
This book is the next best thing to having an entertainment attorney on retainer!
The Filmmaker's Basic Library has all the top-rated filmmaking resources.