Does the film producer really need a film lawyer or entertainment attorney as a matter of professional practice? An activity lawyer's own bias and my stacking of the question notwithstanding, which might naturally indicate a "yes" answer 100% of the time - the forthright answer is, "it depends" ;.Several producers today are themselves film lawyers, entertainment attorneys, or other kinds of lawyers, and so, often can take care of themselves. However the film producers to be concerned about, are the ones who act as if they're entertainment lawyers - but with out 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 working for the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, I guess, the work function of film production counsel and entertainment lawyer is still secure.
I also guess that there will always be a couple of lucky filmmakers who, throughout the entire production process, fly underneath the proverbial radar without entertainment attorney accompaniment. They'll seemingly avoid pitfalls and liabilities like flying bats are reputed to prevent people's hair. By means of analogy, among my close friends hasn't had any health insurance for a long time, and he's still in good shape and economically afloat - this week, anyway. Taken in the aggregate, some people will always be luckier than others, and some 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 activity lawyer, especially in the realm of film (or other) production, could be a real constructive asset to a motion picture producer, as well as the film producer's personally-selected inoculation against potential liabilities. If the producer's entertainment attorney has undergone the method of film production previously, then that entertainment lawyer has already 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 many of those pitfalls. How? By clear thinking, careful planning, and - this is the absolute key - skilled, thoughtful and complete documentation of most film production and related activity. The film lawyer should not be looked at as simply the individual seeking to establish compliance. Sure, the entertainment lawyer may sometimes be usually the one who says "no" ;.However the entertainment attorney could be a positive force in the production as well.
The film lawyer can, in the course of legal representation, assist the producer as a fruitful business consultant, too attorney. If that entertainment lawyer has been involved with scores of film productions, then your film producer who hires that film lawyer entertainment attorney advantages from 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 see the legal cost expenditure to become a fixed, predictable, and necessary one - akin to the fixed obligation of rent for the production office, or the cost of film for the cameras. Although some film and entertainment lawyers may price themselves out of the budget range of the typical 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 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 it is time. If the producer doesn't properly create, file, and maintain a corporate or other appropriate entity by which 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 the entity provides, the entertainment attorney opines, the film producer's personal assets (like house, car, bank account) are at an increased risk 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 really do that" ;.
Doctor: "So? Don't do that" ;.
Want it or not, the film lawyer entertainment attorney continues, "Film is really a speculative business, and the statistical most of motion pictures can fail economically - even at the San Fernando Valley film studio level. It is irrational to operate a picture business or any 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 choices of where and how exactly to file an entity in many cases are prompted by entertainment lawyers however driven by situation-specific variables, including tax concerns relating to the film or film company sometimes. The film producer should let an entertainment attorney get it done and get it done correctly. Entity-creation is affordable. Good lawyers don't look at incorporating a client as a profit-center anyway, because of the obvious potential for new business that the entity-creation brings. Whilst the film producer should know 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 complete further work for that same client - particularly when the entertainment attorney bills the initial job reasonably.
I wouldn't recommend self-incorporation by way of a non-lawyer - anymore than I would tell a picture producer-client what actors to hire in a motion picture - or anymore than I would tell a D.P.-client what lens to make use of on a specific film shot. As is likely to be true on a picture production set, everybody has their particular job to do. And I genuinely believe that the moment the producer lets a competent entertainment lawyer do his / her job, things will begin to gel for the film production in ways that couldn't even be originally foreseen by the film producer.
2. SOLICITING INVESTMENT: This issue also often is really a wake-up call of sorts. Let's say that the film producer wants to make a motion picture with other people's money. (No, not an unusual scenario). The film producer will more than likely start soliciting funds for the movie from so-called "passive" investors in any number of 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 his / her client.
If the film producer is not really a lawyer, then your producer should not think of "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 the inherently speculative business called film, and then collects money on the foundation of the representation, believe me, the film producer may have a lot more grave problems than conscience to deal with. Securities compliance work is among probably 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 might have severe and federally-mandated consequences. Regardless of 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. Whilst, it's shocking to see just how many ersatz film producers in actuality make an effort to float their particular "investment prospectus", complete with boastful anticipated multipliers of the box office figures of the famed motion pictures "E.T." and "Jurassic Park" combined. They draft these monstrosities with their particular sheer creativity and imagination, but usually without entertainment or film lawyer or other legal counsel. I'm certain that several of those producers think of themselves as "visionaries" while writing the prospectus. Entertainment attorneys and the rest of the 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 considered a signatory to collective bargaining agreements of unions such as Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This can be a subject material area that some film producers can handle 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 before making even any initial experience of the guilds. The producer should certainly consult with an entertainment attorney or film lawyer just before issuing any writings to the guilds, or signing any one of their documents. Failure to plan out these guild difficulties with film or entertainment attorney counsel beforehand, could result in problems and expenses that sometimes allow it to be cost-prohibitive to thereafter continue with the picture's further production.
4. CONTRACTUAL AFFAIRS GENERALLY: A picture production's agreements should all take writing, and not saved before last minute, as any entertainment attorney will observe. It could be more expensive to create film counsel in, late in the day - kind of like booking an airline flight a few days before the planned travel. A picture producer should remember a plaintiff suing for breach of a bungled contract might not merely 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 picture producer doesn't wish 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 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 should really be drafted carefully by the entertainment attorney, and should really be customized to encompass the special characteristics of the production.
As an entertainment lawyer, I have experienced non-lawyer film producers try to complete their particular legal drafting for their particular pictures. As previously mentioned above, some few are lucky, and remain underneath the proverbial radar. But look at this: if the film producer sells or options the project, one of the first issues that the film distributor or film buyer (or its film and entertainment attorney counsel) may wish to see, could be the "chain of title" and development and production file, complete with all signed agreements. The production's insurance carrier might also wish to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents must certanly be written to be able to survive the audience.
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