What Legal Issues and Contracts Should a Florida Independent Filmmaker Consider?
With the continued exponential development of handheld technology, it seems everyone can take stunning, high definition video. Whether that video is worthy of being called a “film” is a matter for film critics. Nevertheless, many aspiring filmmakers now have the means to take a leap and produce something that entertains audiences, be it a short film, documentary, or feature-length film. The Gulf Coast is no exception, and cities such as New Orleans and Atlanta are making steady progress as respected production locations by creating business friendly environments, such as tax incentives, to lure production companies. Even Pensacola is considering the creation of a film commission and permit regulations for certain types of film and photography production on city property. So what legal issues should an independent filmmaker consider to protect himself and his work?
First, are you making film as a hobby, or do you intend to become a career filmmaker? The answer to that question may influence whether you produce the project as a sole proprietor or whether you should form a company. Forming an actual business entity can shield your personal assets from liability, for example if you’re sued for a traumatic brain injury when your sound guy knocks an actor in the head with a boom mic. Tax issues and investors are another reason you may want to form a company. What type of company you should form depends on a variety of factors, too numerous to address in this blog post, and your choice should involve consultations with an attorney and an accountant.
Second, in the development phase, do some research to ensure that you’re not about to take on a project that violates someone else’s copyrights or trademarks. Keep in mind that it is not a violation of copyright to recreate an idea or concept; I repeat: IDEA OR CONCEPT. But to do so carries some risk. If you’re retelling a story or concept already encapsulated in a piece of art, your iteration of that concept must be entirely different – too similar, and you may get a cease and desist after all of your hard work. For example, the fairytale of Cinderella has been retold numerous times, but to produce Cinderella exactly as Disney has imagined it would mean serious trouble. If your concept involves an actual person’s life story, definitely see a lawyer first. Some places to research for similar story concepts are as simple as a Google search, IMDB (the Internet Movie Database), Rotten Tomatoes, the Library of Congress, and the Writer’s Guild of America. There are lots of copyright myths floating around. For example, one I hear often, “Isn’t it true that if I just seal my script in an envelope and mail it to myself and don’t open it that I have a copyright?” Not exactly. Your copyright exists (assuming you haven’t violated someone else’s copyright in your creation) the moment you set your idea to paper or film – whether you mail it or register it or do nothing but let it sit in a box. But how you may enforce that copyright depends on a number of factors, the most important being whether you registered the copyright with the U.S. Copyright Office. Mailing it to yourself or registering your treatment with the Writer’s Guild of America (WGA does not register entire scripts) only provides you proof of a date of creation. It does not confer the benefits of U.S. copyright law, such as the right to bring a case in federal court or to claim statutory damages.
Third, there are legal issues to consider when establishing your production crew. Will they be employees of your film company or independent contractors? How much will you pay them – are they part of a union, and if so, are there exceptions that would allow them to work outside the union agreement? If they’re employees of your newly formed company, have you secured worker’s compensation insurance and set up a payroll system? Usually, independent filmmakers collaborate with independent contractors, sometimes even bartering services on each others’ productions. It’s important that you have well-drafted independent contractor agreements, including barter scenarios, that consider matters such as the dates of production, is the crew member giving you first priority or exclusivity for their services on those dates, establish that you are the copyright owner of the materials created, pay rate, how will you credit the crew member’s work, confidentiality provisions, etc. The exact issues to address will depend on the specifics of your production, and it is wise that you consult with an attorney to ensure that you’ve considered all possible issues. Do not assume that an independent contractor agreement you used in the past or that you found on the web is appropriate for every production and every type of crew member. Cookie cutter use of forms is a recipe for disaster.
Assuming you’ve gotten through the months or years of development, production, and post-production, your next legal concerns will be about appearances in film festivals and distribution deals. In submitting your film for consideration by festivals, you must fiercely protect the copies (actual DVD or digital download) that you send out. Just as technology has made it easier to create a film, film festivals are popping up everywhere. Do not assume that you are submitting to a reputable festival, simply because they are listed on Without A Box or FilmFreeway. Set a date by which you expect the copy of your film to be returned or that a download link expires. The last thing you want is to lose a distribution deal because your film has already been widely distributed without your knowledge. If you offered a great product, you’ll be offered festival laurels, and film festivals will provide you with a screening release; if you don’t understand it, hire a lawyer for a review. In a best case scenario, a well known distributor scouts your film at a festival, and they offer you a distribution deal. Before your excitement has you signing right away, take a breath and hire a lawyer. Depending on the offer, you may be better suited to self-distribute through online streaming services, which may or may not involve a relationship with an aggregation service. And of course, in follow-up, you may want to involve both an attorney and an accountant to be sure that the royalties distributions are properly accounted and paid.
It’s not as easy as flipping your smartphone to video mode and hoping for a viral social media sensation. There are numerous potential legal pitfalls. Many of the contracts can be drafted inexpensively, often flat fees, and I even offer package flat fee deals that cover a production to the point of festival submissions. Don’t be intimidated by the idea and assumptions about the cost of hiring an attorney to protect your art. If you’re serious about getting a film to an audience larger than your living room, give me a call so I can help you through the process.