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, that might naturally indicate a "yes" answer 100% of times - the forthright answer is, "it depends" ;.Numerous producers today are themselves film lawyers, entertainment attorneys, and other types of lawyers, and so, often can look after themselves. But the film producers to concern yourself with, are those who behave 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 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 lawyer, I suppose, the task function of film production counsel and entertainment lawyer is still secure.
I also suppose that there will be a few lucky filmmakers who, throughout the entire production process, fly under 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 way of analogy, one of my best friends hasn't had any medical insurance for a long time, and he's 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 is all too simplistic and pedestrian to tell oneself that "I'll prevent the importance of film lawyers if I simply stay out of trouble and be careful" ;.An amusement lawyer, especially in the realm of film (or other) production, could be 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 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 pitfalls. How? By clear thinking, careful planning, and - this is actually the absolute key - skilled, thoughtful and complete documentation of most film production and related activity. The film lawyer shouldn't be looked at as simply the person seeking to ascertain compliance. Sure, the entertainment lawyer may sometimes be the one who says "no" ;.But 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 a highly effective business consultant, too. If that entertainment lawyer has been a part of scores of film productions, then the motion picture 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 permit for counsel, but professional filmmakers tend to view the legal cost expenditure to be always 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 average independent film producer, other entertainment attorneys do not.
Enough generalities. For what specific tasks must a manufacturer 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 motion picture "Wall Street" when talking 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 it is time. If the producer doesn't properly create, file, and maintain a corporate and other appropriate entity through which to conduct business, and if the film producer doesn't thereafter make every effort to help keep that entity shielded, says the entertainment lawyer, then the film producer is potentially hurting himself or herself. Minus the shield against liability that the entity provides, 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. In other words:
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 motion pictures can fail economically - even at the San Fernando Valley film studio level. It's irrational to operate a picture business or any other kind of business out of one's own personal bank account" ;.Besides, it seems unprofessional, a genuine concern if the producer desires to attract talent, bankers, and distributors at any point in the future.
The choices of where and how exactly to file an entity are often prompted by entertainment lawyers but then driven by situation-specific variables, including tax concerns associated with the film or motion picture company sometimes. 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 client as a profit-center anyway, due to the obvious prospect of new business that the entity-creation brings. As the film producer should be aware 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 benefit that same client - particularly if the entertainment attorney bills the first job reasonably.
I wouldn't recommend self-incorporation by way of a non-lawyer - any longer than I'd tell a picture producer-client what actors to hire in a motion picture - or any longer than I'd tell a D.P.-client what lens to utilize on a certain film shot. As is going to be true on a picture production set, everybody has their very own job to do. And I feel that as soon as the producer lets a competent entertainment lawyer do his / her job, things will start to gel for the film production in ways that couldn't even be originally foreseen by the motion picture producer.
2. SOLICITING INVESTMENT: This issue also often takes its 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 likely start soliciting funds for the movie from so-called "passive" investors in numerous possible ways, and could possibly start collecting some monies as a result. Sometimes this occurs before the entertainment lawyer hearing about this post facto from his / her client.
If the film producer is not really 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 of the inherently speculative business called film, and then collects money on the cornerstone of this 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 amusement 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. No matter how great the film script is, it's never worth monetary fines and jail time - and of course the veritable unspooling of the unfinished motion picture if and when the producer gets nailed. Whilst, it is shocking to see how many ersatz film producers in actuality try to float their very own "investment prospectus", filled 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 any entertainment or film lawyer and other legal counsel. I'm sure that several of those producers consider 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 think that the film producer has decided, even without entertainment attorney guidance yet, that the production entity should be a signatory to collective bargaining agreements of unions such as for example Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This is 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 picture 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 just before issuing any writings to the guilds, or signing some 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 picture production's agreements should all maintain writing, and not saved before eleventh hour, as any entertainment attorney will observe. It could be more expensive to create film counsel in, late in the afternoon - type of like booking an airline flight a couple of days ahead of the planned travel. A picture producer should remember that the plaintiff suing for breach of a bungled contract might not merely 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 picture producer does not want to suffer a 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 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 carefully by the entertainment attorney, and should be customized to encompass the special characteristics of the production.
As an amusement lawyer, I have observed non-lawyer film producers try to complete their very own legal drafting for their very own 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 issues 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, filled 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 documents must be written in order to survive the audience.
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