The Legal Aspects of Pre-Production a filmmaker should keep in mind
Warren Zevon’s song about “Lawyers, Guns and Money,” isn’t about pre-production, but it might as well have been. In addition to crewing, casting and catering, if you’re the producer, you had better be thinking about corporation, copyright and clearance.
Pre-production is where producers need to get their legal ducks in a row, lest lawsuits and litigious threats pick them off like, well, ducks in a shooting gallery. While the producer can do some or most of this work, the advice of an entertainment attorney may be critical during pre-production.
At a recent Film Independent education event, IndieWorks attorney Nicole Papincak and paralegal Kirk Hamilton outlined six of the major legal issues producers need to consider.
1. Corporate Formation
Protect yourself and your film by setting up a Single Purpose Vehicle (SPV), usually a Limited Liability Corporation (LLC), so that if the film gets into legal trouble, your personal and other business assets are protected.
If you’re currently using an LLC for loan out work you do for others, you should still set up a separate corporation for your film. A business license (or DBA) is no substitute and does not offer the legal protection an LLC does.
If you do business in California, you’ll need to incorporate here, even if you already have a company in your home state.
2. Chain of Title
Distributors will want to see you film’s chain of title. These documents show the screenplay’s ownership. For example, if you assign the ownership rights to a screenwriter or buy the rights from them, this will need to be noted. Every owner and change of ownership needs to be listed.
Register the screenplay with the U.S. Copyright Office. Your SPV should be the copyright holder. Once the script is recorded with the copyright office, additional legal protections are offered.
It is worth noting that WGA registration does nothing to protect your work and lasts only two years.
3. Script Review
Script review describes the process of going over the script with an attorney to troubleshoot potentially expensive legal issues. For instance, are there copyright or trademark issues? Artwork, including paintings and tattoos, are copyrighted and rights will need to be secured. For example, the artist who did Mike Tyson’s facial tattoo sued Warner Brothers to stop the release of The Hangover Part II.
If you use the likeness of celebrities, like Elvis Presley or Marilyn Monroe, their estates hold the rights to publicity. Character names can also be a clearance problem if someone with that name exists. Using only first names is one way around that problem.
Another good tip: During production, don’t forget to use fake license plates and phone numbers to prevent someone suing for violation of privacy.
4. Errors & Omissions Insurance
E&O covers claims based on script clearance problems. It’s often bundled with the general liability policy for the production. The clearance report generated during the script review will be key to acquiring E&O insurance.
The insurance broker will want to know if the story uses likenesses of real people, living or dead. They’ll also want to know about music licensing, copyrights, chain of title and the name of the production’s attorney.
5. Guild Signatory Matter
Hamilton’s first rule of dealing with guilds and unions is to not lie to them “as they can really make your life miserable.” Whenever a guild asks for information, give it to them as soon as possible.
Plan on three weeks minimum to submit paperwork, though more time is often needed. Producers should also plan on the guilds requiring numerous documents and forms to be filled out.
Guilds like SAG will be interested legal documents prepared in pre-production, such as incorporation paperwork, chain of title and budgets.
6. Cast and Crew Agreements
Papincak laid out the three agreements your cast and crew will need to sign in order to protect you and your film from litigation. Even if they are your BFFs or second cousin twice removed on your mother’s side, everyone needs to sign them, no exceptions.
The first document is a grant of rights. It gives you the rights to the proceeds of their work and services. It also allows you to use their name and likeness should they appear in the film.
Second is the work-made-for-hire agreement. It ensures the producer is the rights holder for all work, including the work of writers and editors.
The third document is the waiver for injunctive relief. It ensures a cast or crew member can only sue for damages, and prevents the plaintiff from asking the court to stop production or block distribution of the film.
Originally published at www.filmindependent.org.