I. Own It

• A beginning producer should consult these sources for backup or additional information for in-depth legal and business information:

  • An experienced entertainment attorney

  • Books

  • Resources

  • Publications

  • Internet

  • Legal aid service

• Primary legal aspects involved in producing:

  • Owning or optioning the story material in your project

  • Protecting the many components of your project

  • Double-checking all these elements

The Entertainment Lawyer:

• Most executives won’t take a pitch unless they know that you have legal representation. And if your agent or other representative sells your work, the lawyer subsequently drafts and coordinates the contracts

• If you can’t fit the cost of an entertainment attorney into your budget, look for a legal aid organization in your area. You might consult with universities that have legal departments, or contact groups such as the Volunteer Lawyers for the Arts

• Entertainment law is highly specialized, and a certified entertainment lawyer is not only competent in state and federal law but is also familiar with the complex wording of:

  • Contracts

  • Releases

  • Agreements

  • Other legal documents

• Some entertainment lawyers can be a big help in:

  • Pitching projects

  • Making valuable connections with:

    • Financing sources

    • Production companies

    • Directors

    • Talent

• They can open doors for you by sending an introductory cover letter to the:

  • Networks

  • Studios

  • Production companies

• Lawyers get paid in several ways:

  • By the hour

  • By the project

  • For a flat fee

  • As an ongoing line in the project’s budget

Intellectual Property Law:

• Intellectual property rights allow an artist the freedom to be creative with the promise of ownership that protects their work from being used by others without compensation or recognition

• There is no sole worldwide copyright law and each country has its own set of laws

• Any product of the human intellect—a creation of the mind— that is unique and has some value in the marketplace falls under the term, intellectual property (or IP). This includes:

  • Literary works

  • Music

  • Sculpture

  • Art

  • Inventions

  • Images

  • Symbols

  • Unique names

  • Publicity rights

  • Unfair competition

  • Misappropriation

• In America, intellectual property law includes:

  • Copyright law:

    • Protects creative or artistic expression of an idea

  • Trademark law:

    • Protects distinctive symbols used in relation to services or products

  • Patent law:

    • Protects inventions

Copyright Law:

• A copyright protects works that have been created and preserved in any tangible form of expression, such as:

  • Written works

  • Video

  • Film

  • Photography

  • Music

  • Multimedia

  • Software

  • Drama, pantomime

  • Choreography

  • Motion pictures

  • Sound recordings

• Copyright Protection:

  • Once you have translated your idea from your mind onto a fixed medium it’s automatically copyrighted; it doesn’t necessarily require official copyright registration to protect the rights of the copyright holder

  • The advantage of officially registering a copyright is that it provides specific evidence of its valid exact copyright dates and ownership, and gives the copyright holder (the artist) an advantage in seeking:

    • Statutory damages

    • Loss of profit

    • Attorney’s fees

• Copyright Symbol:

  • The copyright forbids only actual direct copying. If a writer or musician creates work that has an idea similar to, but not an exact copy of, someone else’s, it will generally not be considered an infringement of someone else’s copyright

  • The symbol of a copyrighted work is © and should be affixed to anything you:

    • Write

    • Produce

    • Draw

    • Compose

    • Create

• Copyright Terms:

  • The terms of most American copyrights now last for the lives of the authors plus 70 years after their death

  • Most films and stills that are less than 95 years old are copyright protected

  • Copyrights that have expired allow those works to fall into the public domain, meaning they are no longer protected by copyright law and can be freely adapted

  • Ideas, titles, themes, or general concepts aren’t protected by copyright law until they are:

    • Written down

    • Videotaped

    • Painted

    • Made tangible

• Work-for-Hire Clause:

  • A producer or other creative who is employed by a production company, or other media employer is usually working under a work-for-hire agreement. This states that the employer owns the copyright to the work that the employee developed while in their employment. This is the usual trade-off when the employer does the hiring and pays the bills. In some cases, the producer can negotiate for revenues from:

    • Foreign broadcast rights

    • Syndication

    • Home video rights

    • Merchandising

    • Books and publishing

• Copyright in the Digital Age:

  • The legal parameters for online material are being closely studied and scrutinized by:

    • Lawyers

    • Producers

    • Traditional networks

    • Cable channels

  • They are setting up:

    • Online tributaries

    • Music providers

Fair Use Defense:

• Under its terms, the Copyright Act allows for some legal exceptions to U.S. trademark and copyright laws, situations in which copyrighted material can be used without the copyright holder’s permission. This clause is known as fair use. When a producer uses another person’s copyrighted material in specific circumstances, the producer isn’t required to have the copyright owner’s permission. The producer can claim the defense of fair use, which declares that the work has been used in a reasonable, “fair” manner that poses no competition to the copyright holder’s finances or reputation

• Fair use often applies in parodies of material, either to make a social comment or for humorous effect; it’s usually considered fair use if it’s clear that the parody is just that—a parody

• The fair use defense is generally claimed when the public interest is served. This can apply to:

  • News reporting

  • Review

  • Analysis and criticism

  • Teaching or scholarship

  • Commentary

• As included as part of the Copyright Act of 1976, there are four determining factors under which the fair use defense can be considered. These factors include:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

  • The nature of the original copyrighted work

  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole

  • The effect of the use upon the potential market or value of the copyrighted work

• Fair Use for Documentary Filmmakers:

  • Documentary Filmmakers’ Statement of Best Practices in Fair Use was born of the frustration felt by documentarians who, when they finally located the right footage that could best tell their story, weren’t legally allowed to use it. Either the:

    • The copyright holder would not give permission

    • The licensing fees were exorbitant

    • The copyright holder could not be located

  • This group organized their thinking around four classes of situations that filmmakers consistently deal with in every phase of production. In each case, it’s possible to apply the fair use defense; they include:

    • Employing copyrighted material as the object of social, political, or cultural critique

    • Quoting copyrighted works of popular culture to illustrate an argument or point

    • Capturing copyrighted media content in the process of filming something else

    • Using copyrighted material in a historical sequence

• Fair Use in the Digital Domain:

  • A study, called Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, outlines its methodology and research results, including in-depth details and provocative examples of the nine categories in which the fair use clause might apply:

  I. Satire and Parody

  II. Negative or Critical Commentary

  III. Positive Commentary

  IV. Quoting to Trigger Discussion

  V. Illustration or Example

  VI. Incidental Use

  VII. Personal Reportage or Diaries

  VIII. Archiving of Vulnerable or Revealing Materials

  IX. Pastiche or Collage

• Fair Use in User-Generated Content:

  • The UGC (user-generated content) is produced by amateur filmmakers, with a smattering of professionally produced content, and is contributed to an online UGC site by anyone with the:

    • Skills

    • Time

    • Right equipment

  • Another description for UGC videos is viral videos - videos that are:

    • Clever

    • Evocative

    • Edgy

    • Informative

• Avoiding Copyrighted Material:

  • It’s always prudent to consult an entertainment lawyer who has experience with issues of fair use; they can:

    • Negotiate rights for a lower fee

    • Assure the network or insurer that your fair use claim is valid and legal

  • The Digital Millennium Copyright Act (DMCA) was passed in 1998. Its intent is to monitor, filter, and protect online platform providers (such as social networking sites and user-generated content sites, later) from litigation, allowing them to promptly remove content if its copyright has been infringed upon

  • Currently, two Internet areas, in particular, have attracted great attention:

    • Social network sites

    • User-generated content sites

Trademark:

• The overall purpose of a trademark is to protect the consumer and to distinguish one product and/or service from another

• The indication of a trademark is the symbol connected to it (™)

• In almost all cases, you don’t need permission from the trademark holder if a trademarked item appears in your piece

• An organization, individual, or other legal entity may choose a:

  • Name

  • Word

  • Phrase

  • Symbol

  • Design

  • Logo

  • Image

  • Combination of any of these components

Patent:

• When the U.S. Patent and Trademark Office grants a patent to an inventor in America, it gives the right to the inventor to prevent other people from making, using, offering to sell or selling or importing the invention

• The term of a U.S. patent is usually 20 years from the date on which the application for the patent was filed

• It can be a:

  • Machine

  • Process

  • Manufactured article

• It must be:

  • New

  • Inventive

  • Useful

  • Industrially applicable

Public Domain:

• Public domain material is appealing to producers and broadcasters because the rights to use it are free

• After the U.S. copyright of material expires, it usually falls into a free-use area known as the public domain. This material includes works by literally hundreds of:

  • Authors

  • Artists

  • Composers

  • Lyricists

Orphan Work:

• A producer isn’t always able to locate the holder of the copyright for a film clip or piece of music. Sometimes, it isn’t clear if the material actually falls into the public domain category. This kind of undeclared material is known as orphan work and creates a legal nightmare for the producer

• There is a potential risk in using this material without permission, but if the producer has genuinely pursued all avenues available to find the copyright holder—and provides clear documentation and backup of all efforts and intent—that can be strong proof of diligence if there are legal ramifications later

Writers Guild of America Registration:

• Producers and writers often protect their work by registering it with the writers Guild of America (WGA), the primary union for television and film writers

• The registration provides a dated record “of the writer’s claim to authorship” of the registered literary material

• This registration is valid for up to five years, and it can be renewed for another five years

• A non-WGA member can register a script for a small fee

• The WGA registration establishes the completion date of a literary property, which includes:

  • Written treatments

  • Outlines

  • Synopses

  • Full scripts that have been written for:

    • Radio

    • Theatrical

    • Television

    • Motion pictures

    • DVDs

    • Video cassettes/ discs

    • Interactive new media

II. If you don’t own it, get permission to use it

• If you didn’t create your project idea, it is owned by someone else. If you want to use it, you first have to get permission

• It is the job of the producer to legally protect every single component with some form of permission attached

• Permission to use it might be granted for:

  • Free

  • Fee

  • A specified amount of time

• This applies to almost every aspect of your project:

  • The script

  • Music

  • Clips

  • Images

  • Photographs

  • Products with brand names

  • Props

Licensing:

• When a body of work has been copyrighted, the rights to use it in a project must be either paid for outright or licensed for a fee

• The producer (or the producer’s employer) pays a fee for the right to use this copyrighted material

• In addition to talking with an entertainment lawyer, producers can consult with a company that specializes in rights and clearances. Both are experts whose advice is almost mandatory when considering the area of licensing

• The area of licensing is a highly specialized area. It requires specific contracts, including:

  • Elements of exclusivity

  • Duration of use

  • The definition of media

  • Insurance

Literary Rights and Clearances:

• Your storyline might rely on the use of material such as:

  • Books

  • Online research material

  • Manuscripts

  • Articles

  • Treatments

  • Outlines

  • Newspaper columns

  • Stories

  • Biographies and autobiographies

  • Adaptations

  • Theatrical plays

  • Public performance rights

• You will need to either:

  • Option the rights:

    • Negotiate for exclusive, limited rights to the project in return for a fee or agreement

  • Buy the rights:

    • Negotiate to buy and permanently own all ownership rights

Music Rights and Clearances:

• Unless you are using original music that has been scored especially for your project, you must get clearance, or permission, for a license that grants you the right to use any preexisting musical compositions and recordings that are owned by someone else

• In almost every country, the music falls under that country’s specific copyright protection

• If your music hasn’t been licensed, it could mean:

  • Delays

  • Lawsuits

  • Possible termination of your project

• It falls on the producer (or a music clearance service or lawyer) to:

  • Determine who owns the copyright

  • Negotiate for permission with the copyright owner to use it

  • Pay the fees that are necessary to get the clearance

Music Licenses:

• There are two kinds of music licenses in the United States

• Most pre-existing and/or recorded music requires that you get both:

  • A Sync (synchronization) license:

    • Gives you the right to “sync up” or match a song or music to your visual image

    • The publisher represents the composer of the music and the songwriter

    • The publisher owns and grants the right to include the actual composition or piece of music that is synchronized to the picture

    • The songwriter(s) of that composition assigns his copyright to the publisher who shares any royalties; the songwriter(s) might also retain the rights to grant the license

  • A Master Use license:

    • Gives you the right to play a specific recording in your content

    • The record label owns the actual audio recording

    • The label owns and grants the right to include a specific recording of the composition in timed relation to the picture or image

    • The artist(s) might also need to grant a separate license

Music Cue Sheets:

• Producers and anyone involved in the process of music licensing uses a form known as a cue sheet for listing each time and place that music appears in the program. This is necessary to calculate fees that must be paid either to ASCAP (American Society of Composers, Authors, and Publishers) or to BMI (Broadcast Music Incorporated), who use these cue sheets to identify the publishers and composers who are to be paid and what percentage of the royalties they’re entitled to receive

• A music cue sheet lists:

  • The title of each composition

  • The use and timing of each music cue

  • The composer(s)

  • Publisher(s)

  • Their performing rights affiliation

Music Venues, Geographical Territories, and Time Periods:

• Both the publishers and the record labels want to know:

  • How do you plan to use their music

  • What geographical territories do the rights cover, such as only North American rights and/or world rights

  • For how long do you want to retain the license

• Publishers require:

  • The title of the composition

  • Its writer(s)

  • Its publisher(s)

• Record labels require:

  • The title of the recorded track

  • The performing artist

  • The source of the recorded track

Live Music Performances:

• If you have plans to shoot a performance where live music might be played, or if there is any inclusion of a song’s lyrics in the script, make sure you have all the necessary clearances before you shoot the performance

• Both ASCAP and BMI regularly monitor television and film as well as other media looking for potential copyright infringement

• Before you go into the postproduction phase, clear all music you intend to use in your:

  • Opening main credits

  • Montages

  • Background songs

  • Musical underscore

  • End credits

• The Internet is an excellent source for access to:

  • Performers

  • Recording artists

  • Songs and compositions

  • Publishers

  • Recording labels

Alternative Sources for Licensed Music:

• Original Music:

  • It often makes sense for a producer to totally bypass the expenses involved in buying licensed music, and instead, hire a composer to write and record original music

  • A talented composer often owns their own studio and equipment and can work closely with you to create a music track that compliments your vision and production

  • Many universities have departments for musicians and film and television composers

  • Young composers are often eager to get experience and projects to add to their demo reel; they can provide real energy and originality to your project for much lower fees. In certain cases, a student can work on your project as an independent study for which she can get school credit

  • You can consider hiring a composer on a work-for-hire basis. Here, all publishing and recording rights for any music composed specifically for your project by the composer belong to you. In exchange, you’ll pay a fee and work out your contract details

• Stock Music:

  • Has been composed and recorded especially for a stock music house

  • It’s considerably cheaper and is generally royalty-free. This means that the producer usually pays a one-time fee for a one-time-only use or for unlimited use of stock music, depending on the terms agreed upon. The music’s rights have been cleared for sale

  • The prices tend to vary, depending on the music’s end use

  • The variations of available stock music are impressive, covering all genres, emotions, rhythms, and timing

  • As technology gets more sophisticated, composers can simulate the sound of any instrument

  • Most music libraries also provide sound effects, which are often referred to as needle drops

Stock Footage:

• Similar to stock music, stock footage includes:

  • Photographs

  • Film

  • Video

  • Images

  • Animation

  • Clip art

• Depending on its end use, the footage can be licensed and often can be purchased and/or come royalty-free, from hundreds of organizations that sell:

  • Archived footage with a historical focus:

  • Usually shot in 16 or 35-mm film

  • The footage includes historic events, old newsreel footage, documentary material, clips, or whole programs from early films and television

  • Stock footage specifically shot for resale:

    • Generally shot in high-quality video or film

    • Alternative to costly aerial shots of cities or landscapes, time-lapse footage, or establishing shots such as the front of Buckingham Palace or the Hollywood sign

    • Can provide a realistic-appearing background for blue-screen backgrounds, used in creating virtual sets

Network Footage Clearances:

• The Rights and Clearances (R&C) department focuses on rights and clearances and handles requests by producers to license their footage

• The R&C department first considers:

  • The source of the request

  • How the clips will be used

  • What fees to charge

  • The details of the licensing agreement

• The fees depend on several factors:

  • Will this footage be used for broadcast or nonbroadcast?

  • Will this footage be online, in DVD sales, or for corporate training?

  • Is the request coming from an educational, nonprofit source, or from a rival broadcast network that might profit by featuring the footage in a program?

  • What geographical territories does the use cover?

  • For how long is the footage being licensed?

The Right of Publicity:

• This area of the law addresses our basic right to prevent someone from using our name, our image, or our voice for commercial purposes, or for any reason, without first getting our permission

• The right of publicity usually affects celebrities who have been exploited without their permission in advertising or in some other form of media

• You’ll get written permission (a talent release) from every person you may be shooting or recording. Make sure that this release is easy to understand

III. Protect it

Both Sides of Plagiarism Protection:

• Because of their understandable aversion to plagiarism lawsuits, the group or network that you’re pitching to will ask you to sign what is known as a submission release, especially if you aren’t represented by an agent or lawyer. Essentially, this release says that:

  • You are the legal owner of the material you’re pitching

  • You have given them your permission to read and consider your pitch and share it with others in their company

  • They are under no obligation to use the material

  • If they are in the process of developing a project similar to yours, it’s a coincidence

First, the Pitch, Then the Protection:

• If you don’t have a written contract, it is almost impossible to receive any kind of compensation if the details are later questioned

• In most cases, the client prepares the contract

• Before you consider drafting any contracts, agreements, deal memos, or releases, talk first with your entertainment lawyer. If you don’t have a lawyer, research similar agreements in books, on websites, or talk with experienced producers. Find the format and wording that you can understand, adapt it to your specific project, and keep it short and to the point

• A traditional contract between a producer and a client specifies:

  • w much money that time is worth

  • How much time you all agree that it could take the project to:

    • Develop

    • Write

    • Shoot

    • Edit

    • Mix

Most Common Contracts:

• Deal memo:

  • This is the most common legal deal-making document, used by most producers in most circumstances

  • It is short and sweet, written in more casual language as a one- to a three-page letter between the producer and whomever they’re hiring

  • It outlines:

    • Names

    • Job descriptions

    • Fees

    • Starts and stop dates

    • Mutual expectations

    • County, and state of legal jurisdiction

    • Additional pertinent information

    • Signatures

    • Dates

• Long form:

  • When a deal memo isn’t sufficient, the project may require a long form

  • It is usually a long 20- to 70-page document, written in formal legalese, and attempts to present the positions of all concerned participants

• Literary releases and options:

  • A clearly defined outline of the assignment of any literary rights from the copyright holder to the producer, the project, and/or its major participants

• Writer employment:

  • This agreement is between the producer and the writer(s) and outlines the writing and/or revising of a final script for a specific project

  • It usually follows the WGA contract formats

• Director’s employment:

  • Similar to the writer’s contract, terms of the director’s employment following DGA guidelines are outlined

• Pay or play clause:

  • An added clause, is usually part of a deal memo between the producer and the actor(s), writer(s), and/or director

  • It is a guarantee that the producer will pay all agreed-upon fees, even if they are taken off the project or the project is canceled

Fees and Compensation:

• Financial compensation for the producer, especially for the independent producer or production company, is an important issue to consider

• Each project has varying costs and profit margins, and each pays the producer fees and profits based on different fee structures. Each project has its own budgetary parameters

• There is no set fee structure, and each deal is on a per-project basis. Some deal structures promise bonuses, others a fee for coming in under budget, or ahead of schedule

• Compensation for the producer depends on overall budget costs like:

  • Foreign locations

  • Big stars

  • Complicated rights clearances

  • Animation

  • Others

The Three-Phase Deal:

• For smaller independent producers and production companies, the client first agrees with the producer on an overall total estimated budget. The client then divides the total budget into three distinct phases of payments to be made to the producer over the life of the project:

  • Phase One:

    • When the initial contract is signed by the producer and the client, one-third of the budget goes to the producer to allocate to the project’s needs

  • Phase Two:

    • After all principal photography has been completed, the client gives the second third of the budget total to the producer

  • Phase Three:

    • When the job has been completed, and all guarantees satisfied, the producer receives the final third

The Step Deal:

• It’s commonplace for the producers to protect themselves and their projects by entering into a “step deal” with the writers.

• The step deal process divides the fixed payments into various steps, or phases, of developing a script. Each step along the way allows for review and evaluation and gives notice to the writer that the producer can put an end to the relationship after any step

• This is a general overview of the step deal process, though each deal has different requirements:

  • Step One:

    • Here, the writer usually authors a synopsis of the idea

    • They are paid, whether or not their idea is bought

    • They may or may not be asked to take part in the next step

  • Step Two:

    • The writer completes a full treatment of the story and is paid for their work whether it’s accepted or not

  • Step Three:

    • Generally, one writer is given the go-ahead to develop the script

    • In some cases, additional writers may be paid to write dialog, relationships, or other elements

Fees and Funding, Rights and Territories:

• Often a network, cable channel, or other end user/client gives the producer the full budget amount needed to complete a project and bring it to broadcast or distribution. The producer negotiates a license fee with the buyer that outlines how much they will pay, how many runs they get, and so forth. If there is not enough money to make the project, or if the network is contributing only a percentage of the budget, it’s up to the producer to find the remaining money

• Coproduction financing is an example of one funding source. Though this doesn’t apply to all projects, the producer sometimes grants the license for specified rights to the end user, who can then transmit the program or content domestically, over a certain time period, and in clearly defined territories. The producer still owns the project and retains all the rights connected to it, other than those granted to the domestic network

• The producer can then negotiate with broadcasters or end users in other countries for additional monies to fill the budget gap. This gives the broadcasters the right to air the project, but only for a specific time in defined territories

Most Favored Nation:

• When the casting of a project is based on a most favored nation (MFN) clause, this ensures that equal opportunities are extended to all parties involved

• Everyone has agreed to receive the same salary, and get equal treatment in terms of work conditions

• They might also agree to alphabetized on-screen credits rather than ranking their names by star power and/or salary levels

• Everyone gets the same amount and shares equal parity

• Salaries under the most favored nations generally tend to be union scale plus 10 percent

• MFN can also apply to a soundtrack; when one artist agrees to take a specific fee for use of a song, all other artists also agree to the same fee for their songs

Insurance Coverage and Policies:

• Because producing television and new media can be an expensive proposition, and often in the firing line of possible litigation, insurance is always included in the costs. This, like entertainment law, is a complex aspect of producing; most producers consult with professionals who specialize in this financial arena

• One form of protection is a completion bond, a form of insurance sometimes required in television, corporate, and new-media production. The bond guarantees to the parent company or client that you can complete the job, and that you will fulfill all the requirements of delivery. Bondholders can legally take over much of a project’s control. They can fire the crew and do whatever else they feel will bring the project back on track

• The costs for the completion bond usually run around 3 percent of the budget’s total

• The primary requirement by the completion bond company mandates that the producer and the team bring the project in, on or under budget, and by a specific date

• The bond company meets with the producer and director to discuss ways the project will be produced, after the producer submits the:

  • Shooting script

  • Budget

  • Shooting schedule

  • Financing plan

  • Bios of key production personnel

• Other insurance coverage could include:

  • Workers’ compensation

  • Liability insurance

  • Extra insurance riders that might cover a variety of contingencies, like:

    • Stunt work

    • Foreign locations

    • Equipment

    • Other aspects of production

IV. Double-check it

• Reviewing and checking each legal document is a vital part of the producer’s job

• Some documents require extensive research and review by an entertainment attorney, although the majority of contracts, releases, and clearances are standardized forms that are preprinted or available on software program templates

Find the Right attorney:

• You want an experienced attorney who is reputable and knowledgeable, and respected within the media industry

• Deal directly with any legal challenges at the beginning of the process, rather than ignoring them until it is too late. Any delays could result in expensive court fees

• If you don’t have access to an attorney and instead rely on shareware template forms, make sure they are:

  • Current with legal rulings

  • Relevant to your specific needs

  • Written in language that you can follow

Review Releases, Clearances, and Permissions:

• If you haven’t gotten a signed release from an on-camera talent or a signed location agreement, or have neglected to obtain permission to use a film clip that your program depends on, your project could be terminated, or the magnet for a lawsuit

• It is the producer’s responsibility to cover all these bases, whether you are an independent producer or on a work-for-hire contract

Check all Production Contracts:

• Each specific job requires a new set of contracts

• Double-check the details in an often wordy contract between the producer and the production company, network, or end buyer before it’s signed and finalized

• Make sure that it is accurate, and that it mirrors the deal you think you have agreed on

• If the wording is unclear or ambiguous, consult with a lawyer for clarification

Location agreements:

• Because owning a studio or location can be an expensive proposition, producers generally lease or rent spaces in which to shoot

• Using this site that’s owned by someone else requires a location agreement between the owner of the property (or the owner’s agent) and the producer

• They rely on location scouts to find and secure locations to avoid studio costs; they may need locations like a:

  • Private home

  • Public museum

  • Restaurant

  • School cafeteria

  • City street

  • Country meadow

  • Senior citizen home

Agreements with Unions:

• If you, or a production company you’re working with, are a signatory to any of the media-related unions this means that you have agreed to use only active dues-paying members of that union in your project. It also means that you can’t use creatives, who are not union members; you as the producer face possible fines or other repercussions

• When you’re hiring, be very clear about your status as either a signatory company or a non-union shop

• These guilds and unions provide specific services to their members:

  • They take care of payments of residuals, based on a contractually agreed-upon percentage of a project’s profits

  • They make payments to the members’ pension and health plans

  • They take part in negotiations and arbitrations on the part of their membership

  • They have established specific rules and regulations around their members’:

    • Work rules

    • Timetables

    • Work conditions

• The producer’s focus is delegated to negotiating with unions and drafting and signing various agreements that outline the:

  • Terms of the project

  • Job descriptions

  • Fees

  • Contracts

  • Schedules

• Unions are the bargaining agents for the on- and off-screen talent in:

  • Television

  • Film

  • New media

• The major unions are:

  • The Screen Actors Guild (SAG)

  • The Directors Guild of America (DGA)

  • The Writers Guild of America (WGA)

  • The National Association of Broadcast Employees and Technicians–Communication Workers of America (NABET–CWA)

  • The American Federation of Television and Radio Artists (AFTRA)

  • The American Federation of Musicians (AFM)

  • The Producers Guild of America (PGA)

  • IATSE

On-Screen Credits:

• Every deal memo or contract outlines the union member’s specific screen credits at the opening and/or closing of the show

• Negotiation for proper screen credit might include:

  • How the credit is phrased

  • Proper spelling

  • Font style and size

  • How long it stays on the screen

  • Whether the person’s name is by itself or part of a group of names

  • Other contractual details

  • Advertising on posters

  • On-air promos

• Most programs give screen credits that might include:

  • Produced by

  • A film by

  • Directed by

  • Story by

  • Written by

  • Composed by

  • Credits to executive producer(s), and associate producer(s)

• There may also be extra attention to the:

  • Opening logo(s) of the production companies

  • Presentation credits

  • Executive producer(s)

  • Longer list in the closing credits that include a “special thanks” section that gives courtesy credits to people and companies who have contributed

Ancillary Revenues:

• The producer seldom gets rich from ancillary revenues, partially because the formulas used to make the overall calculations are intentionally obtuse and vary with the network, channel, production company, or another end user

• The producer’s financial participation is usually based on net profits, a tricky area that can be difficult to pin down or audit

• Although there are exceptions to this “formula,” here is how it works in most cases:

  • The network/end-user adds up all revenues from the project, as well as any extra sources of income that total the net profits. Networks and most end users are experts at “creative accounting,” so net profits are seldom profitable to anyone but them. The producer is wise to get as much money as possible up front, in:

    • Salaries

    • Lines on the budget

    • Other perks

  • The network/end-user deducts a distribution fee from this net profits total. This fee is paid to itself or an outside distributor for home video, foreign sales, and other ancillary licensing. All production costs are deducted, which includes:

    • Each phase of production

    • Insurance

    • Overhead

    • Services

    • Costs for promotion

  • The network/end-user divides any profit that might still be left between the producer and themselves. The producer usually receives a much smaller percentage than the network, but over time and with experience, producers can negotiate deals that benefit them as well as the network

Making the Deal: a Final Check List:

• Get it in writing:

  • Protect yourself with ample documentation

  • Follow up an oral promise with a written memo or email version of the points made and agreed upon

• Take notes:

  • In a meeting or on the phone, take notes and date them

• Keep a paper trail:

  • Even in this electronic age, keep hard copies as well as computer backups of correspondence and memos sent and received, and dated

  • Keep each draft of any screenplays

  • If you’ve made some form of contribution to the story, follow that up with a brief memo outlining that contribution:

    • Dialog

    • Storyline

    • Theme

    • Subplot

    • Location

• Register your work with the WGA:

  • This is a valuable verification of your ownership; register it before you begin to pitch it around

• Check out potential buyers:

  • Be objective and realistic about excited interest in your project. It may be wonderful, but the people may not be. Check them out thoroughly:

    • Search the web

    • Ask other filmmakers

    • Do a credit check

• Don’t make the first offer:

  • See what the other side has to offer first

  • Never sign any binding contracts without thoroughly dissecting each point with your attorney

• Keep each promise you make:

  • If you can’t keep it, don’t make it

• Don’t be afraid of negotiation:

  • In most cases, it is expected

• Always try for a win-win:

  • In this ideal scenario, everyone is happy, and no one sues them

• When in doubt, hold it out:

  • Should you suspect that you may not get paid what you originally agreed upon, you can consider holding onto all video, film, or digital material until you’ve cashed - and cleared - their check

Summary:

• The legal component of producing is as important as the creative, technical, or budgetary needs of your project

• It’s worth the investment to have an entertainment lawyer

Review Questions:

1. Why is legal documentation important to a producer?

2. What are the responsibilities of an entertainment attorney?

3. What are the three areas of intellectual property?

4. What’s the difference between a copyright and a trademark?

5. How can you legally protect your own project idea?

6. What are the steps you’d need to take if you wanted to use a Top Ten album or single as music for your project?

7. Pose an imaginary situation in which a favored nation clause could benefit your project

8. Name three types of production insurance.

9. What’s the primary difference between a contract for a film and one for TV or new media?

10. Why are screen credits included in a contract?