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Question: I work as a grip and electrician on many low
budget features and music videos. Unfortunately, I do not have the
luxury of always working with well-established and reputable companies
and producers. Although I have not been burned yet, I have heard many horror
stories from associates regarding fees not paid and damaged equipment
not replaced. My questions: (1) What are some ways that I can protect
myself, in terms of my fee and my equipment, without getting involved
with huge contracts and lawyers? (2) Are there steps I can take that
will protect me without scaring these small time producers?
Answer: First, try to check
on the reputation and integrity of those who seek to employ you. Call
some of the people they have worked with before. Most scoundrels act
consistently. You can usually determine their reputation with minimal
effort. Second, you should always insist on a written contract or deal
memo covering the essential terms of the deal.
Sometimes, no
matter how careful you are, you may find yourself in a position where
another party owes you money and refuses to pay. If you are stiffed for
a small sum ($5,000 or less), you have a fairly good remedy in those
states that have small claims courts. Otherwise, you may need to retain
an attorney. If you include in your agreements a provision for binding
arbitration under the American Arbitration Association or IFTA, you
could avoid litigation to resolve your dispute, and significantly
reduce legal fees and costs.
Question: My foster
mother, who cannot read or write well, wrote a song that has now been
recorded. She had a "friend" write it out for her. This
"friend" signed her own name to the song and submitted it to
the person who has recorded it. Even though this person knows that my
foster mother wrote the song (the "friend" admitted it), they
say my foster mother cannot receive any of the royalties because her
name was not on the original manuscript. We don't have money to hire
lawyers. Is there anything she can do?
Answer: This is fraud. You
can sue the person who misrepresented they were the author when in fact
your foster mother was the author. If you can't hire a lawyer, perhaps
you can represent yourself or negotiate a settlement. You could notify
the publisher of the song of this claim. The publisher might decline to
promote the work while its authorship is being contested.
Question: My
previous agent submitted a screenplay to at least three major
production companies before leaving the business (and the country) to teach.
He has not responded to any of my letters—and it is my assumption that
he would not be responding to any of those companies if they were
trying to contact him. What is your best suggestion for me? Should I
attempt to contact those companies myself? Should I hire an
entertainment lawyer at this point? Or will my next agent be able to
check on those scripts for me without any adverse legal ramifications.
(Absolutely no contracts were signed with this first agent.)
Answer: Contact the
production companies and inform them of who your new agent or lawyer
is, and give them their address and phone number.
Question: I'm
writing about Entertainment Lawyers in school. We have to try to
convince someone to want to become an entertainment lawyer, what advice
could you give me?
Answer: I think the best
reason to become involved in entertainment law is if you like the area
of intellectual property and enjoy the business aspects of filmmaking
and television production. It seems to me you either have an interest
in this or you don't.
Question: Do you
feel that there is a need for legal reform in entertainment law/
intellectual property law? If so, is there anyone working towards this
reform, thus far? When I say legal reform, I'm more or less looking at
legal help for the starving artists who have little money and legal
knowledge, yet who are taken advantage of by unscrupulous attorneys.
Answer: You may want to
contact the State Bar if you are aware of unethical activities by
attorneys. Attorneys can be disbarred if they violate the state's rules
of professional conduct. As for helping starving artists, you may want
to contact California Lawyers for the Arts at http://www.calawyersforthearts.org
or (310) 998-5590.
Question: Would you
clarify the term "moral rights" used in your books?
Answer: Moral rights have a
limited application in the United States. Except in regard to fine art,
American law doesn't expressly recognize the moral rights of authors.
Moral rights are separate and distinct rights from the copyright or
ownership of a particular work. Think of the various rights as a
three-tiered scheme: (1) you could go into an art gallery and buy a
painting, in which case you would own the actual painting, but not
necessarily the copyright to the painting. (2) You could also negotiate
to own the copyright to the painting in which case you would have the
rights of the copyright owner, which would allow you to duplicate the
image of the painting, on lithographs, T-shirts, posters, etc. (3)
Authors of some works (in our example, the painter) may have what are
called "moral rights" which prevent third parties (in this
example, you, the art buyer) who may own the author's work, and the
copyright to it, from making any changes in the work or removing the
author's credit. Moral rights are generally comprised of the Right of
Paternity, which is the right of the authors to be known as the author
of a work, and the Right of Integrity, which is the right to prevent
other people from desecrating or changing their work. Although the
United States does not explicitly recognize moral rights (except for
fine art), other legal doctrines, such as the law of unfair
competition, have been used to protect similar rights for U.S. authors.
Question: I am a
third year law student at St. John's Law School in New York. I'm
considering taking a class in entertainment law during the fall
semester. The grade is based on an independent research paper. I was
wondering if you could give me a few ideas as to what some of the hot
topics are in the area of protecting screenwriters' rights.
Answer: I don't know of any
hot topics in regard to screenwriter's rights, but there are many
topics that would merit attention in regard to telecommunications reform
and how existing copyright and intellectual property laws will be
applied as we increasingly rely on the Internet.
Question: My
writing consultant agreed to represent me as my agent and sell my
screenplay. My entertainment lawyer spent a lot of time with her over
the phone and at meetings (at my expense) and drew up a contract for
that purpose. At the last minute, and without a word to my
entertainment lawyer or me, this so-called agent took a job at another
company and left me with an unsigned contract. Meanwhile, I still have
to pay my lawyer for services rendered. My lawyer says there isn't
anything I can do. I think there is. Could I take the agent to small
claims court? Or what? I am paying good money for hot air. Thanks for
any reply.
Answer: Generally speaking,
both parties to a negotiation bear the expense of their own attorney
fees. Unless there was some agreement for this person to reimburse you
for your attorney fees in the event the deal fell through, I don't see
any basis for a claim.
Question: I don't
think this is covered in your books, at least from what I've read in
them so far: A friend of mine says deferred pay for film crews is
illegal, even though everyone does it. I don't see why it would be
illegal; so long as it is made clear that the pay is potential only,
not guaranteed. Any comments?
Answer: Deferments are not
illegal, however, if all pay is deferred, this may run afoul of various
minimum wage laws, which require that a minimum payment must be made.
As long as the minimum wage laws are met, there is no problem with
additional compensation being deferred.
Question: I write
screenplays under a pseudonym. I live in Florida and I have registered
the pseudonym as a fictitious name in the state of Florida and I have
obtained an occupational license in the county I live in to do business
under that name. Questions: (1) When I correspond with potential agents
or buyers (I am obviously a new writer), do I correspond with them
under the fictitious name I write my screenplays under or under my
legal name, informing them that I write as …? (2) I also know that you
can list other names known as under your Social Security Number. Any
advantages or disadvantages to doing that in my case? (3) Finally, I
guess, the most to-the-point question: When your write under a
pseudonym, how do you best handle that legally and professionally? I
don't want to change my name legally, but I would like to be known in
the business by my fictitious name. Any advice?
Answer: If you want to be
known in the industry by your fictitious name, then you should use it.
That is what should be listed on your screenplays and any place else
where you received credit. However, even though you received credit
pseudonymously, you may want your agent to know your real name. It's
really up to you.
Question: Can you
please point me to a resource that provides for standard net profit
participation for producers, actors, and lawyers in a $30,000
independent film? Thanks.
Answer: No one sets a
standard as to what a net profit definition should be, although many of
the major studios have similar definitions. You can consult Matthew
Bender's Law book series, Entertainment Industry Contracts, which
should be available at most law libraries. You can also check my book,
Contracts for the Film and Television Business, 2nd Ed. (Silman-James
Press), which has a net profit definition in it.
Question: A client
of mine is a painter. A movie producer who wants to use her painting in
a movie has approached her. At this point I don't know whether the
movie is studio-produced or independent, nor do I know the nature of
the budget. In general, then, and assuming that the use of the painting
will be significant, should we be asking for some money consideration
for the use of the painting?
Answer: It would not be
unreasonable for you to ask for some payment for the use of your
picture, especially if it is featured in the film. Without knowing the
prominence of the picture and context in which it will be used, it is
hard to give an estimate of what kind of payment would be reasonable.
Question: What is
an E&O Insurance policy, and why is this important in a screenplay
contract negotiation?
Answer: E&O (Errors and
Omissions) Insurance is akin to a malpractice insurance policy for
writers and filmmakers. It protects them should they inadvertently
infringe another party's copyright, defame a person, invade someone's
privacy etc. etc. It does not cover a writer or filmmaker if they
knowingly engage in wrongful behavior. In other words, if they are
careless and infringe another's rights they are covered, but if they
intentionally plagiarize a script, they would not be covered by
insurance.
The insurance policy covers the named insured, and you
can add additional named insureds to the policy for a nominal charge.
If you are a member of the Writers Guild of America, then by virtue of
their collective bargaining agreement, the writer is supposed to be
included on the employer's policy. Even with E&O coverage, in the
event of litigation the insured may be liable for the deductible, which
can be $10,000 or more.
The policy covers both any damages assessed against the
writer/filmmaker, and the legal fees incurred for defense.
E&O is often required by U.S. distributors before
they will license a film for distribution. They want the right to
distribute the film and do not want to buy a lawsuit.
A writer and filmmaker can be liable for copyright
infringement even if they don't intend to infringe another's
copyrighted material. For instance, if a filmmaker licensed a piece of
music for his film, and it turned out that unbeknownst to the filmmaker
the musician that sold him the music didn't own all the necessary
rights to it, then the filmmaker could be liable even though the
filmmaker was an innocent infringer.
Question: I
recently started a corporation to be a production company; I plan on
filing for an S-Class election in a few days. My question is about
public record: this is an industry where people screw each other just
because they can. Is there any way that "anyone who wants to"
can access public records, such as my S-Class filing or my corporate
tax returns? I filed in Delaware because I read somewhere that
Delaware, like Nevada, does not disclose the names of the shareholders
under any circumstance. Is there any way that the so-called corporate
shield could be penetrated, and could I then be liable for personal
assets? (Not counting illegal activity, I'm talking case example, I
ticked off Disney and they want blood.)
Also,
a second question: I understand that a production company needs a
business license in the local city that they will film in. Is a
business license, or an occupational permit, required for just working
out of your home and dealmaking quietly, like pre-preproduction? If
it's the law, I obviously can't afford to overlook this, but if it's
possible to avoid, I'd like to: the city fees are high at the moment,
at least for some things.
Answer: Certain information
about your corporation is a matter of public record. For instance, you
need to register with the Secretary of State the identity of an agent
for service of process. This is the person who can accept papers if a
lawsuit is filed against the corporation. Once a lawsuit is filed
against a corporation, of course, other information, if relevant, could
be revealed through discovery. Generally, corporate tax returns are not
publicly available. However, in the course of a lawsuit, if it was
relevant, the court might order this information produced. On the other
hand, if you become a public company, much information about your
company will need to be publicly disclosed.
You do not necessarily need a business license in every
city that you film in, but you may need a film permit. A business
license will typically be required where you have an office. The laws
vary by locality. You will need to check with the city in which you are
based.
Question: Last
month at a film festival I won some screenwriting contest. The first
prize was some $500 in cash and my script read by the panel of
producers. When I was announced as the winner, the organizer of the
contest told me that he hadn't brought cash money but gave me his
business card and asked for mine, saying he would take care of it once
back in his town. Since then I didn't hear from him anymore. No money
and no one asking to read my script. I wrote him an E-mail message to
remind him of what he promised, but he did not answer me. What would
you do in my place?
Answer: If he doesn't live
up to his promise, then you can bring suit against him. I am not sure
what state you reside in, but $500 would put you in small claims court
in California, and you don't need an attorney to represent yourself.
Question: What are
the most important issues to have clearly stated with a letter of
intent when enlisting a name actor onto project so that you can go
raise capital? Who are the best individuals to speak with in regards to
finding the value of an actor in terms of raising capital?
Answer: The letter of
intent merely states that the actor intends to do the film if various
conditions are met: the rehearsal and shoot are convenient for their
schedule; you reach terms on compensation, etc. It is not a binding
contract and will only impress unsophisticated investors. The best way
to determine the value of an actor is to speak to distributors who sell
films worldwide. You can also consult such reference sources as The
Ulmer Guide.
DISCLAIMER: The information
provided here is intended to provide general information and does not
constitute legal advice. You should not act or rely on such information
without seeking the advice of an attorney and receiving counsel based
on your particular facts and circumstances. Many of the legal
principles mentioned might be subject to exceptions and qualifications,
which are not necessarily noted in the answers. Furthermore, laws are
subject to change and vary by jurisdiction.
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