Does the film producer really desire a film lawyer or entertainment attorney as a matter of professional practice? An amusement 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" ;.Several producers nowadays are themselves film lawyers, entertainment attorneys, and other forms of lawyers, and so, often can take care of themselves. However the film producers to bother about, are those who act as if they're entertainment lawyers - but with no license or entertainment attorney legal experience to back it up. Filmmaking and motion picture 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 employed by the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, Perhaps, the task function of film production counsel and entertainment lawyer remains secure.
I also suppose that there can be a couple of lucky filmmakers who, through the entire entire production process, fly beneath the proverbial radar without entertainment attorney accompaniment. They'll seemingly avoid pitfalls and liabilities like flying bats are reputed to prevent people's hair. Through analogy, certainly one of my best 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, some people can be luckier than others, and some people can be more inclined than others to roll the dice.
But it's all too simplistic and pedestrian to tell oneself that "I'll avoid the importance of film lawyers if I just stay out of trouble and be careful" ;.An amusement lawyer, especially in the realm of film (or other) production, can be quite a real constructive asset to a motion picture producer, along with the film producer's personally-selected inoculation against potential liabilities. If the producer's entertainment attorney has undergone the process of film production previously, then that entertainment lawyer has already learned lots 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 those pitfalls. How? By clear thinking, careful planning, and - here is the absolute key - skilled, thoughtful and complete documentation of most film production and related activity. The film lawyer should not be thought of as simply the person seeking to determine 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 course of legal representation, assist the producer as an effective business consultant, too. If that entertainment lawyer has been involved with scores of film productions, then the motion picture producer who hires that film lawyer entertainment attorney advantages from that very cache of experience. Yes, it sometimes might be difficult to stretch the film budget to allow for counsel, but professional filmmakers tend to view 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 price of film for the cameras. Though some film and entertainment lawyers may price themselves from the cost range of the average independent film producer, other entertainment attorneys do not.
Enough generalities. For what specific tasks must a company typically retain a video 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 talking to 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 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 the film producer is potentially hurting himself or herself. With no shield against liability that the entity can offer, the entertainment attorney opines, the motion picture 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 really do that" ;.
Doctor: "So? Don't do that" ;.
Want it or not, the film lawyer entertainment attorney continues, "Film is just a speculative business, and the statistical most movies can fail economically - even at the San Fernando Valley film studio level. It's irrational to perform a video business or any other form of business out of one's own personal bank account" ;.Besides, it looks unprofessional, an actual concern if the producer wants to attract talent, bankers, and distributors at any point in the future.
The options of where and how to file an entity in many cases are prompted by entertainment lawyers but driven by situation-specific variables, including tax concerns associated with the film or motion picture company sometimes lawyers. The film producer should let an amusement 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 the entity-creation brings. While the film producer should remember that under U.S. law a customer can fire his/her lawyer anytime at all, many entertainment lawyers who do the entity-creation work get asked to accomplish further benefit that same client - especially if the entertainment attorney bills the very first job reasonably.
I wouldn't recommend self-incorporation with a non-lawyer - any more than I would tell a video producer-client what actors to hire in a motion picture - or any more than I would tell a D.P.-client what lens to utilize on a specific film shot. As will soon be true on a video production set, everybody has their very own job to do. And I genuinely believe that the moment the producer lets a qualified entertainment lawyer do their job, things will begin to gel for the film production in techniques couldn't even be originally foreseen by the motion picture producer.
2. SOLICITING INVESTMENT: This dilemma also often takes its 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 numerous possible ways, and might actually start collecting some monies as a result. Sometimes this occurs ahead of the entertainment lawyer hearing about any of it post facto from their client.
If the film producer is not just a lawyer, then the producer should not really 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 with this inherently speculative business called film, and then collects money on the foundation of the representation, believe me, the film producer could have much more grave problems than conscience to deal with. Securities compliance work is among the most difficult of matters faced by an amusement attorney.
As both entertainment lawyers and securities lawyers will opine, botching a solicitation for film (or any other) investment may have severe and federally-mandated consequences. No matter how great the film script is, it's never worth monetary fines and jail time - and undoubtedly the veritable unspooling of the unfinished motion picture if and when the producer gets nailed. All the while, it's shocking to see how many ersatz film producers in the real world make an effort 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 with no entertainment or film lawyer and other legal counsel. I'm sure that many of these producers consider themselves as "visionaries" while writing the prospectus. Entertainment attorneys and the remaining bar, and bench, may tend to think of them, instead, as prospective 'Defendants' ;.
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 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 material area that some film producers are designed for themselves, particularly producers with experience. However, if the film producer are able it, the producer should consult with a video lawyer or entertainment lawyer prior to making even any initial experience of the guilds. The producer should certainly consult with an amusement attorney or film lawyer prior to issuing any writings to the guilds, or signing any of their documents. Failure to plan out these guild issues 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 film production's agreements should all take writing, and not saved before the last second, 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 several days before the planned travel. A film producer should remember a plaintiff suing for breach of a bungled contract might not only seek money for damages, but may possibly 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 wish to suffer a right back claim for talent compensation, or a disgruntled location-landlord, or state child labor authorities - threatening to enjoin or shut the motion picture 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 properly by the entertainment attorney, and should be customized to encompass the special characteristics of the production.
As an amusement lawyer, I have seen non-lawyer film producers try to accomplish their very own legal drafting for their very own pictures. As mentioned above, some few are lucky, and remain beneath the proverbial radar. But think about this: if the film producer sells or options the project, one of many first items that the film distributor or film buyer (or its film and entertainment attorney counsel) may wish to see, may be the "chain of title" and development and production file, filled 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 be written so as to survive the audience.