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 can naturally indicate a "yes" answer 100% of the time - the forthright answer is, "it depends" ;.Numerous producers nowadays are themselves film lawyers, entertainment attorneys, and other forms of lawyers, and so, often can look after themselves. However the film producers to worry about, are the ones who become if they are entertainment lawyers - but with no license or entertainment attorney legal experience to back it up. Filmmaking and movie practice comprise an industry wherein nowadays, unfortunately, "bluff" and "bluster" sometimes serve as substitutes for actual knowledge and experience. But "bluffed" documents and inadequate production procedures won't ever 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 task function of film production counsel and entertainment lawyer continues to be secure.
I also suppose that there will be several lucky filmmakers who, through the entire entire production process, fly underneath the proverbial radar without entertainment attorney accompaniment. They will seemingly avoid pitfalls and liabilities like flying bats are reputed in order to avoid people's hair. Through analogy, one of my close friends hasn't had any medical health insurance for decades, and he is still in good shape and economically afloat - this week, anyway. Taken in the aggregate, some individuals will be luckier than others, and some individuals will be more inclined than others to roll the dice.
But it's all too simplistic and pedestrian to share with oneself that "I'll steer clear of the need for film lawyers if I simply stay out of trouble and be careful" ;.An entertainment 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 been through the method of film production previously, then that entertainment lawyer has learned many 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 - here is the absolute key - skilled, thoughtful and complete documentation of all film production and related activity. The film lawyer shouldn't be thought of as simply the individual seeking to establish compliance. Sure, the entertainment lawyer may sometimes be 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 length of legal representation, assist the producer as an effective business consultant, too. If that entertainment lawyer has been associated with scores of film productions, then a movie producer who hires that film lawyer entertainment attorney advantages from that very cache of experience attorneys. Yes, it often may be difficult to stretch the film budget allowing for counsel, but professional filmmakers tend to see the legal cost expenditure to be always a fixed, predictable, and necessary one - comparable to the fixed obligation of rent for the production office, or the price of film for the cameras. While some film and entertainment lawyers may price themselves out of the cost range of the common independent film producer, other entertainment attorneys do not.
Enough generalities. For what specific tasks must a manufacturer 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 movie "Wall Street" when speaking to Bud Fox while on the morning beach on the oversized cell 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 and 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 a film producer is potentially hurting himself or herself. With no shield against liability an entity provides, the entertainment attorney opines, the movie producer's personal 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. Quite simply:
Patient: "Doctor, it hurts my head when I actually 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 motion pictures can fail economically - even at the San Fernando Valley film studio level. It's irrational to operate a film business or any other form of business out of one's own personal bank account" ;.Besides, it looks unprofessional, a genuine concern if the producer really wants to attract talent, bankers, and distributors at any point in the future.
Your choices of where and how to file an entity tend to be prompted by entertainment lawyers however driven by situation-specific variables, including tax concerns concerning the film or movie 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 client as a profit-center anyway, due to the obvious possibility of new business an entity-creation brings. Whilst the film producer should be aware that under U.S. law a client can fire his/her lawyer at any time at all, many entertainment lawyers who do the entity-creation work get asked to accomplish further work for that same client - particularly if the entertainment attorney bills the initial job reasonably.
I wouldn't recommend self-incorporation with a non-lawyer - anymore than I would tell a film producer-client what actors to hire in a motion picture - or anymore than I would tell a D.P.-client what lens to utilize on a certain film shot. As will soon be true on a film production set, everybody has their very own job to do. And I believe that as soon as the producer lets a qualified 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 movie producer.
2. SOLICITING INVESTMENT: This issue also often constitutes a wake-up call of sorts. Let's claim that the film producer wants to produce a motion picture with other people's money. (No, not a unique scenario). The film producer will probably start soliciting funds for the movie from so-called "passive" investors in a variety of possible ways, and could possibly start collecting some monies as a result. Sometimes this occurs ahead of the entertainment lawyer hearing about this post facto from his / her client.
If the film producer is not just a lawyer, then a 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 with this inherently speculative business called film, and then collects money on the cornerstone of that representation, believe me, the film producer may have even 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. Irrespective of how great the film script is, it's never worth monetary fines and jail time - as well as the veritable unspooling of the unfinished movie if and once the producer gets nailed. Even while, it's shocking to see how many ersatz film producers in real life make an effort to float their very own "investment prospectus", detailed 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 very own sheer creativity and imagination, but usually without entertainment or film lawyer and other legal counsel. I'm certain that a few of these producers think of themselves as "visionaries" while writing the prospectus. Entertainment attorneys and the remaining 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 will have to be described as 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 is a subject matter area that some film producers can handle themselves, particularly producers with experience. However, if the film producer are able it, the producer should consult with a film lawyer or entertainment lawyer prior to making even any initial contact with 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 one of their documents. Failure to plan out these guild problems with film or entertainment attorney counsel beforehand, could result in problems and expenses that sometimes ensure it is cost-prohibitive to thereafter continue with the picture's further production.
4. CONTRACTUAL AFFAIRS GENERALLY: A movie production's agreements should all take writing, and not saved until the last second, as any entertainment attorney will observe. It will be more expensive to create film counsel in, late in the day - sort of like booking an airline flight a few days before the planned travel. A movie producer should remember a plaintiff suing for breach of a bungled contract might not only seek money for damages, but can also seek the equitable relief of an injunction (translation: "Judge, stop this production... stop this motion picture... stop this film... Cut!").
A movie producer doesn't want 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 movie 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 must be drafted properly by the entertainment attorney, and must be customized to encompass the special characteristics of the production.
As an entertainment lawyer, I have seen non-lawyer film producers try to accomplish their very own legal drafting for their very own pictures. As stated 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 items that the film distributor or film buyer (or its own film and entertainment attorney counsel) may wish to see, is the "chain of title" and development and production file, detailed with all signed agreements. The production's insurance carrier could also want to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents should be written so as to survive the audience.
