Thursday, February 7, 2013

The Need For An Entertainment Lawyer In Film production

Does the film producer in fact need a film lawyer or entertainment attorney as a matter of pro practice? An entertainment lawyer's own bias and my stacking of the interrogate notwithstanding, which might plainly indicate a "yes" riposte 100% of the time - the forthright riposte is, "it depends". A number of producers these days are themselves film lawyers, entertainment attorneys, or other types of lawyers, and so, often can take care of themselves. But the film producers to worry about, are the ones who act as if they are entertainment lawyers - but without a license or entertainment attorney legal taste to back it up. Filmmaking and request for retrial picture custom contain an commerce wherein these days, unfortunately, "bluff" and "bluster" sometimes serve as substitutes for actual knowledge and experience. But "bluffed" documents and cture yield procedures will never flee 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 presume alone, I suppose, the job function of film yield counsel and entertainment lawyer is still secure.

I also suppose that there will always be a few lucky filmmakers who, throughout the entire yield process, fly under the proverbial radar without entertainment attorney accompaniment. They will seemingly avoid pitfalls and liabilities like flying bats are reputed to avoid people's hair. By way of analogy, one of my best friends hasn't had any health insurance for years, and he is still in good shape and economically afloat - this week, anyway. Taken in the aggregate, some citizen will always be luckier than others, and some citizen will always be more inclined than others to roll the dice.

But it is all too simplistic and pedestrian to tell oneself that "I'll avoid the need for film lawyers if I plainly stay out of problem and be careful". An entertainment lawyer, especially in the realm of film (or other) production, can be a real constructive asset to a request for retrial picture producer, as well as the film producer's personally-selected inoculation against possible liabilities. If the producer's entertainment attorney has been through the process of film yield previously, then that entertainment lawyer has already learned many of the harsh lessons ordinarily dished out by the industrial world and the film business.

The film and entertainment lawyer can therefore spare the producer many of those pitfalls. How? By clear thinking, true planning, and - this is the absolute key - skilled, thoughtful and complete documentation of all film yield and associated activity. The film lawyer should not be conception of as plainly the cowboy or cowgirl wearing the proverbial "black hat". Sure, the entertainment lawyer may sometimes be the one who says "no". But the entertainment attorney can be a positive force in the yield as well.

The film lawyer can, in the policy of legal representation, aid the producer as an effective company consultant, too. If that entertainment lawyer has been complicated with scores of film productions, then the request for retrial picture producer who hires that film lawyer entertainment attorney benefits from that very cache of experience. Yes, it sometimes may be difficult to stretch the film allocation to allow for counsel, but pro filmmakers tend to view the legal cost expenditure to be a fixed, predictable, and primary one - akin to the fixed obligation of rent for the yield office, or the cost of film for the cameras. While some film and entertainment lawyers may price themselves out of the price range of the median independent film producer, other entertainment attorneys do not.

Enough generalities. For what exact tasks must a producer typically keep a film lawyer and entertainment attorney?:

1. Incorporation, Or Formation Of An "Llc": To paraphrase Michael Douglas's Gordon Gekko character in the request for retrial picture "Wall Street" when speaking to Bud Fox while on the morning beach on the oversized movable phone, this entity-formation issue ordinarily constitutes the entertainment attorney's "wake-up call" to the film producer, telling the film producer that it is time. If the producer doesn't properly create, file, and declare a corporate or other appropriate entity through which to guide business, and if the film producer doesn't thereafter make every endeavor to keep that entity bullet-proof, says the entertainment lawyer, then the film producer is potentially shooting himself or herself in the foot. Without the shield against liability that an entity can provide, the entertainment attorney opines, the request for retrial 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".

Like it or not, the film lawyer entertainment attorney continues, "Film is a speculative business, and the statistical majority of request for retrial pictures can fail economically - even at the San Fernando Valley film studio level. It is insane to run a film company or any other form of company out of one's own personal bank account". Besides, it looks unprofessional, a real concern if the producer wants to attract talent, bankers, and distributors at any point in the future.

The choices of where and how to file an entity are often prompted by entertainment lawyers but then driven by situation-specific variables, together with tax concerns relating to the film or request for retrial picture company sometimes. The film producer should let an entertainment 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, because of the positive possible for new company that an entity-creation brings. While the film producer should be aware that under U.S. Law a client can fire his/her lawyer at any time at all, many entertainment lawyers who do the entity-creation work get asked to do added work for that same client - especially if the entertainment attorney bills the first job reasonably.

I wouldn't advise self-incorporation by a non-lawyer - any more than I would tell a film producer-client what actors to hire in a request for retrial picture - or any more than I would tell a D.P.-client what lens to use on a exact film shot. As will be true on a film yield set, everybody has their own job to do. And I believe that as soon as the producer lets a competent entertainment lawyer do his or her job, things will start to gel for the film yield in ways that couldn't even be originally foreseen by the request for retrial picture producer.

2. Soliciting Investment: This issue also often constitutes a wake-up call of sorts. Let's say that the film producer wants to make a request for retrial 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 any number of possible ways, and may in fact start collecting some monies as a result. Sometimes this occurs prior to the entertainment lawyer hearing about it post facto from his or her client.

If the film producer is not a lawyer, then the producer should not even think of "trying this at home". Like 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 this inherently speculative company called film, and then collects money on the basis of that representation, believe me, the film producer will have even more grave problems than conscience to deal with. Securities compliance work is among the most difficult of matters faced by an entertainment attorney.

As both entertainment lawyers and securities lawyers will opine, botching a solicitation for film (or any other) speculation can have severe and federally-mandated consequences. No matter how great the film script is, it's never worth monetary fines and jail time - not to mention the veritable unspooling of the unfinished request for retrial picture if and when the producer gets nailed. All the while, it is shocking to see how many ersatz film producers in the real world try to float their own "investment prospectus", complete with boastful predicted multipliers of the box office figures of the famed request for retrial pictures "E.T." and "Jurassic Park" combined. They draft these monstrosities with their own sheer creativity and imagination, but ordinarily with no entertainment or film lawyer or other legal counsel. I'm sure that some of these producers think of 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 assume that the film producer has decided, even without entertainment attorney guidance yet, that the yield entity will need to be a signatory to public bargaining agreements of unions such as Screen Actors Guild (Sag), the Directors Guild (Dga), and/or the Writers Guild (Wga). This is a branch matter area that some film producers can cope themselves, particularly producers with experience. But if the film producer can afford it, the producer should consult with a film lawyer or entertainment lawyer prior to development even any preliminary taste with the guilds. The producer should in fact consult with an entertainment 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 ahead of time, could lead to problems and expenses that sometimes make it cost-prohibitive to thereafter continue with the picture's added production.

4. Contractual Affairs Generally: A film production's agreements should all be in writing, and not saved until the last minute, as any entertainment attorney will observe. It will be more costly to bring film counsel in, late in the day - sort of like booking an airline flight a few days before the planned travel. A film producer should remember that a plaintiff suing for breach of a bungled compact might not only seek money for damages, but could also seek the equitable relief of an injunction (translation: "Judge, stop this production... Stop this request for retrial picture... Stop this film... Cut!").

A film 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 request for retrial picture yield down for reasons that could have been in fact avoided by true planning, drafting, research, and transportation with one's film lawyer or entertainment lawyer. The movie production's agreements should be drafted with care by the entertainment attorney, and should be customized to encompass the special characteristics of the production.

As an entertainment lawyer, I have seen non-lawyer film producers try to do their own legal drafting for their 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 things that the film seller or film buyer (or its own film and entertainment attorney counsel) will want to see, is the "chain of title" and development and yield file, complete 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 so as to survive the audience.

Therefore, for a film producer to try to "fake it" oneself is plainly to put many problems off for another day, as well as generate an air of non-attorney amateurism to the yield file. It will be less costly for the film producer to strike all of these issues earlier as opposed to later, through use of a film lawyer or entertainment attorney. And the likelihood is that any self-reliant film attorney and entertainment lawyer is going to have to re-draft ample parts (if not all) of the producer's self-drafted yield file, once he or she sees what the non-lawyer film producer has done to it on his or her own - and that translates into unfortunate and wasted expense. I would no sooner want my chiropractor to draft and negotiate his own filmed request for retrial picture contracts, than I would put myself on his table and try to crunch through my own backbone adjustments. Furthermore, I wouldn't do half of the chiropractic adjustment myself, and then call the chiropractor into the examining room to conclude what I had started. (I use the chiropractic motif only to spare you the cliché old saw of "performing surgical operation on oneself").

There are many other reasons for retaining a film lawyer and entertainment attorney for request for retrial picture work, and space won't allow all of them. But the above-listed ones are the big ones.

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