Does the film producer need a film lawyer, Travel Knowledge, or entertainment attorney as a matter of professional practice? An entertainment lawyer’s bias and my stacking of the question notwithstanding might naturally indicate a “yes” answer 100% of the time – the forthright answer is, “It depends.” Several producers these days are film lawyers, entertainment attorneys, or other types of lawyers, so they often can take care of themselves. However, the film producers to worry about are the ones who act as if they are entertainment lawyers – but without a license or entertainment attorney legal experience to back it up.
Filmmaking and motion picture practice comprise an industry wherein, unfortunately, “bluff” and “bluster” sometimes substitute for actual knowledge and experience. But “bluffed” documents and cture production procedures will never 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 suppose the job function of film production counsel and entertainment lawyer is still secure.
I also suppose there will always be a few lucky filmmakers who fly under the proverbial radar without entertainment attorney accompaniment throughout the production process. They will seemingly avoid pitfalls and liabilities like flying bats, which are reputed to protect people’s hair. By analogy, one of my best friends hasn’t had any health insurance for years, and he is still in good shape and economically afloat – this week, anyway. Taken in the aggregate, some people will always be luckier than others, and others will always be more inclined to roll the dice.
But it is all too simplistic and pedestrian to tell oneself that “I’ll avoid the need for film lawyers if I simply stay out of trouble and be careful.” An entertainment lawyer, especially in film (or other) production, can be a real constructive asset to a motion picture producer and the film producer’s personally selected inoculation against potential liabilities. Suppose the producer’s entertainment attorney has previously been through the film production process. In that case, that entertainment lawyer has already learned many of the harsh lessons regularly dished out by the commercial world and the film business.
The Film and entertainment lawyer can spare the producer many of those pitfalls. How? Clear thinking and careful planning are the keys – skilled, thoughtful, and complete documentation of all film production and related activity. The film lawyer should not be considered simply the cowboy or cowgirl wearing the proverbial “black hat.” Sure, the entertainment lawyer may sometimes be the one who says “no.” However, the entertainment attorney can also be a positive force in production.
In legal representation, the film lawyer can also assist the producer as an effective business consultant. If that entertainment lawyer has been involved with scores of film productions, then the motion picture producer who hires that film lawyer entertainment attorney benefits from that very cache of experience. It may not be easy to stretch the film budget to allow counsel. Still, professional filmmakers tend to view the legal cost expenditure as fixed, predictable, and necessary – akin to the fixed obligation of rent for the production office or film cost for the cameras. While some film and entertainment lawyers may price themselves out of the price range of the average independent film producer, other entertainment attorneys do not. Enough generalities. What tasks must a producer typically retain as a film lawyer and entertainment attorney?:
1. INCORPORATION, OR FORMATION OF AN “LLC”: To paraphrase Michael Douglas’s Gordon Gekko character in the motion picture “Wall Street” when speaking to Bud Fox while on the morning beach on the oversized mobile 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 through which to conduct business, and if the film producer doesn’t after that, make every effort to keep that entity bullet-proof, says the entertainment lawyer. The film producer is potentially shooting themself in the foot. Without the shield against liability that an entity can provide, the entertainment attorney opines, the motion picture producer’s 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. In other words:
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Patient: “Doctor, it hurts my head when I do that.”
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Like it or not, the film lawyer entertainment attorney continues, “Film is a speculative business, and most motion pictures can fail economically – even at the San Fernando Valley film studio level. It is insane to run a film business or any other business out of one’s bank account”. Besides, it looks unprofessional, a real concern if the producer wants to attract talent, bankers, and distributors at any point in the future.
Entertainment lawyers often prompt where and how to file an entity. Still, they are sometimes driven by situation-specific variables, including tax concerns relating to the film or motion picture company. The film producer should let an entertainment attorney do it correctly. Entity creation is affordable. Good lawyers don’t incorporate a client as a profit center anyway because of the obvious potential for a new business that an entity creation brings. While the film producer should be aware that under U.S. law, a client can fire their lawyer at any time, 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 first job reasonably.
I wouldn’t recommend self-incorporation by a non-lawyer – any more than I would tell a film producer-client what actors to hire in a motion picture – or tell a D.P.-client what lens to use on a specific film shot. As will be true on a film production set, everybody has a job. As soon as the producer lets a competent entertainment lawyer do his or her job, things will start to gel for the film production in ways that the motion picture producer couldn’t originally foresee.
2. SOLICITING INVESTMENT: This issue also often constitutes a wake-up call. Let’s say the film producer wants to make a motion picture with other people’s money. (No, it’s not an unusual scenario.) The film producer will likely start soliciting funds for the movie from so-called “passive” investors in many possible ways and may actually start collecting some monies as a result. Sometimes, this occurs before the entertainment lawyer hears about it post facto from his or her client.
If the film producer is not a lawyer, the producer should not think of “trying this at home.” Like it or not, the entertainment lawyer opines that the film producer will sell people securities. If the producer promises investors some pie-in-the-sky results in the context of this inherently speculative business called a film and then collects money based on that representation, believe me, the film producer will have even more grave problems than conscience to deal with. Securities compliance work is among the most difficult of matters faced by an entertainment attorney.
As entertainment 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 – not to mention the veritable unspooling of the unfinished motion picture if and when the producer gets nailed. It is shocking to see how many ersatz film producers in the real world try to float their own “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 sheer creativity and imagination, but usually with no entertainment, film lawyer, or other legal counsel. I’m sure some of these producers think of themselves as “visionaries” while writing the prospectus. Entertainment attorneys and the rest of the bar and bench may tend to think of them instead as prospective ‘Defendants.’
Enough said.
3. DEALING WITH THE GUILDS: Let’s assume 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 Screen Actors Guild (SAG), the Directors Guild (DGA), and the Writers Guild (WGA). This is a subject matter area that some film producers can handle themselves, particularly producers with experience. However, if the film producer can afford it, the producer should consult with a film or entertainment lawyer before making any initial contact with the guilds. The producer should consult an entertainment attorney or film lawyer before writing to the guilds or signing any 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 continue with the picture’s further production.
4. CONTRACTUAL AFFAIRS GENERALLY: A film production’s agreements should all be in writing and not saved until the last minute, as any entertainment attorney will observe. It will be more expensive to bring film counsel in late in the day – sort of like booking an airline flight a few days before the planned travel. A film producer should remember that a plaintiff suing for breach of a bungled contract might not only seek money for damages but could 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 want to suffer a back claim for talent compensation, a disgruntled location landlord, or state child labor authorities – threatening to enjoin or shut the motion picture production down for reasons that could 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 customized to encompass the special characteristics of the output.
As an entertainment lawyer, I have seen non-lawyer film producers try to do their legal drafting for their pictures. As mentioned above, some few are lucky and remain under the proverbial radar. But consider this: if the film producer sells or options the project, one of the first things that the film distributor or film buyer (or its own film and entertainment attorney counsel) will want to see is the “chain of title” and development and production file, complete with all signed agreements. The production’s insurance carrier may also want to see these same documents. So might the guilds, too. And their entertainment lawyers. The papers must be written to serve the audience.
Therefore, for a film producer to try to “fake it” oneself is to put many problems off for another day and create an air of non-attorney amateurism in the production file. It will be less expensive for the film producer to attack these issues earlier than later using a film lawyer or entertainment attorney. The likelihood is that any self-respecting film attorney and entertainment lawyer is going to have to re-draft substantial parts (if not all) of the producer’s self-drafted production file once he or she sees what the non-lawyer film producer has done to it on his or her own – and that translates into unfortunate and wasted expense.
.I would no sooner want my chiropractor to draft and negotiate his filmed motion picture contracts than put myself on his table and try to crunch through my backbone adjustments. Furthermore, I wouldn’t do half of the chiropractic adjustment myself and then call the chiropractor into the examining room to finish what I had started. (I use the chiropractic motif only to spare you the cliché old saw of “performing surgery on oneself”). There are many other reasons for retaining a film lawyer and entertainment attorney for motion picture work, and space won’t allow all of them. But the above-listed ones are the big ones.
