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 the time - the forthright answer is, "it depends" ;.A number of producers today are themselves film lawyers, entertainment attorneys, or other types of lawyers, and so, often can look after themselves. However the film producers to bother about, are the ones who become if they are entertainment lawyers - but without a license or entertainment attorney legal experience to back it up. Filmmaking and film practice comprise an industry wherein today, unfortunately, "bluff" and "bluster" sometimes serve as substitutes for actual knowledge and experience. But "bluffed" documents and inadequate production procedures won't escape the trained eye of entertainment attorneys doing work for the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers attorneys. Because of this alone, Perhaps, the task function of film production counsel and entertainment lawyer is still secure.
I also suppose that there will always be a few lucky filmmakers who, through the entire production process, fly beneath the proverbial radar without entertainment attorney accompaniment. They'll seemingly avoid pitfalls and liabilities like flying bats are reputed in order to avoid people's hair. By means of analogy, one of my close friends hasn't had any medical insurance for decades, and he is still in good shape and economically afloat - this week, anyway. Taken in the aggregate, many people will always be luckier than others, and many people will always be more inclined than others to roll the dice.
But it's all too simplistic and pedestrian to inform oneself that "I'll steer clear of the importance of film lawyers if I simply 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 motion picture producer, in addition to the film producer's personally-selected inoculation against potential liabilities. If the producer's entertainment attorney has experienced the method 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 a lot of pitfalls. How? By clear thinking, careful planning, and - this is actually the absolute key - skilled, thoughtful and complete documentation of film production and related activity. The film lawyer should not be considered as simply anyone seeking to establish compliance. Sure, the entertainment lawyer may sometimes be usually the one who says "no" ;.However 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 an effective 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 sometimes may be difficult to stretch the film budget to allow for counsel, but professional filmmakers tend to see the legal cost expenditure to be a fixed, predictable, and necessary one - similar to the fixed obligation of rent for the production office, or the expense of film for the cameras. Although some film and entertainment lawyers may price themselves out from the cost range of the typical independent film producer, other entertainment attorneys do not.
Enough generalities. For what specific tasks must a company 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 talking with Bud Fox while on the morning beach on the oversized cellular phone, this entity-formation issue usually constitutes the entertainment attorney's "wake-up call" to the film producer, telling the film producer that it's 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. Without the shield against liability that an entity provides, 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. Put simply:
Patient: "Doctor, it hurts my head when I do that" ;.
Doctor: "So? Don't do that" ;.
Want it or not, the film lawyer entertainment attorney continues, "Film is a speculative business, and the statistical most movies 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 wants to attract talent, bankers, and distributors at any point in the future.
The 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 relating to the film or film company sometimes. The film producer should let an entertainment attorney do it and do it correctly. Entity-creation is affordable. Good lawyers don't look at incorporating a customer 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 customer can fire his/her lawyer whenever you want at all, many entertainment lawyers who do the entity-creation work get asked to do further work for that same client - especially if the entertainment attorney bills the initial 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 particular film shot. As will undoubtedly be true on a film production set, everybody has their very own job to do. And I genuinely believe that the moment the producer lets a reliable entertainment lawyer do his / her job, things will begin to gel for the film production in methods couldn't even be originally foreseen by the film producer.
2. SOLICITING INVESTMENT: This problem also often constitutes a wake-up call of sorts. Let's say that the film producer wants to create a motion picture 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 a variety of possible ways, and might actually start collecting some monies as a result. Sometimes this occurs before the entertainment lawyer hearing about it post facto from his / her client.
If the film producer is not really a lawyer, then your producer should not even 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 of this inherently speculative business called film, and then collects money on the foundation of that representation, trust in me, the film producer could have a lot more grave problems than conscience to deal with. Securities compliance work is among the 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. Irrespective of how great the film script is, it's never worth monetary fines and jail time - and of course the veritable unspooling of the unfinished film if and once the producer gets nailed. All the while, it's shocking to see exactly how many ersatz film producers in the real world try to float their very 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 very own sheer creativity and imagination, but usually without any entertainment or film lawyer or other legal counsel. I'm sure several of those producers consider themselves as "visionaries" while writing the prospectus. Entertainment attorneys and the remaining portion of the bar, and bench, may tend to think about 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 will need to be a signatory to collective bargaining agreements of unions such as for instance Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This can be a subject matter area that some film producers are designed for themselves, particularly producers with experience. However, if the film producer can afford it, the producer should consult with a film lawyer or entertainment lawyer before making even any initial experience of 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 problems with film or entertainment attorney counsel in advance, could cause problems and expenses that sometimes ensure it is cost-prohibitive to thereafter continue with the picture's further production.
4. CONTRACTUAL AFFAIRS GENERALLY: A film production's agreements should all maintain writing, and not saved before eleventh hour, as any entertainment attorney will observe. It may well be more expensive to bring film counsel in, late in the afternoon - kind of like booking an airline flight several days before the planned travel. A film 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 film producer does not desire to suffer a right back claim for talent compensation, or perhaps a disgruntled location-landlord, or state child labor authorities - threatening to enjoin or shut the film production down for reasons that might have been easily avoided by careful planning, drafting, research, and communication with one's film lawyer or entertainment lawyer. The movie production's agreements should be drafted with care by the entertainment attorney, and should be customized to encompass the special characteristics of the production.
As an entertainment lawyer, I have observed non-lawyer film producers try to do their very own legal drafting for their very own pictures. As previously mentioned above, some few are lucky, and remain beneath the proverbial radar. But look at this: if the film producer sells or options the project, one of many first things that the film distributor or film buyer (or its own film and entertainment attorney counsel) would want to see, is the "chain of title" and development and production file, filled with all signed agreements. The production's insurance carrier can also desire 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.
