by Nelson Goforth
What if you made a film, a really good film, and the right people were interested...only to find that it was, for legal or technical reasons, completely, utterly, absolutely unsalable?
The most common mistake for inexperienced filmmakers occurs right up front, after the idea maybe, but before everything else. According to entertainment attorney Michael Haskins, taking care of details up front can save a lot of angst and pain and money later on. Excited filmmakers, ready to shoot, push off the boring parts, "let's deal with it later" - but later may never happen, or ‘later’ may be too late. Haskins reckons that 90% of the problems that he has to deal with are a result of the “deal with it later” mentality. He argues that filmmakers need to define, up front, the contributions of each participant to a project, their roles and how they are to be compensated or credited, and it needs to be in writing.
The cautions here apply to money-making ventures, for the most part. Student films and shorts, with no expectation of making money, play by a differing, though not totally different set of rules. But as most students, and most makers of shorts, aspire to that "money-making" threshold…here's something you need to know.
Deal Memos and Contracts
According to Haskins, "every single person who touches a film has a right to his or her work on it." This includes not just the writers, directors and actors, but also the electricians and PAs - each of them having some ownership of the film, and from each of them the producer needs to secure those rights, for terms you agree to, or you could be dealing with it later, with lawyers. This is the purpose of deal memos and other contracts. If someone has put money, or skill, or specific intellectual property into your film (a script version, for instance), even if they’ve just been instrumental in bringing something to the table, this needs to be accounted for and their portion of the project specified in a contract. Haskins notes that, if you sign a contract, you should actually read the contract.
For below-the-line crew the contracts are usually in the form of a “deal memo”. It defines the relationship of crew members to the film - what’s to be paid, and the fact that, in exchange for payment, they give up their interest in the film as ‘work for hire’. Of course, you do actually have to pay them.
Disregarding these details can result in a film that cannot be sold, because of legal wranglings and encumbrances, no matter the quality of the product. A disgruntled crew member, for instance, whose role was not clearly defined as “work for hire” can hold your movie hostage. Properly dealing with rights protects not only the product, but the work of all the people involved. You may think your project doesn’t need this level of care, because you’re all friends, get it all in writing anyway, perhaps you’ll stay friends. According to Haskins the only time a project doesn’t need contracts is if there’s no money spent, if you don’t intend to sell, and if you’re okay with no one ever seeing your film.
Contracts are involved at other points in the process as well: procuring locations, obtaining film permits, arranging for a caterer, etc. It is important for a producer to understand what is required, to make the necessary arrangements, and to keep track of paperwork during the entire production and beyond.
Of course none of this information is intended to be used as legal advice, only as a warning. Haskins often used the phrase “it depends” in answering questions. It depends because every project is different, and the legal advice and contracts will vary depending upon the situation – there is no “one size fits all” contract. Adequately protecting yourself and your project up front is as much a part of making a movie as shooting or editing.
Haskins also cautions that it’s important to plan for reparations - it’s a movie, damages will occur, people will get hurt. Liability insurance is crucial to protect your project, and it is important to understand the limitations of your policy. If you put an actor behind the wheel of an antique sports car (as he was, as an actor, in The Aviation Cocktail), will your insurance cover any damage that might occur? What if the actor has no experience driving a standard transmission, are you willfully putting the car (or the actor) at risk?
More and more locations are requiring not only contracts, but insurance certificates. In my own case, co-producing the short Web of Lies, RTD required two million dollars of liability coverage to shoot in Union Station. By moving our production under the aegis of an existing production company, we (Kathryn Gould and myself) were able to provide the coverage, else we would have had to purchase short term liability and equipment insurance...or not shoot in the crucial location for our film. I still managed to err in not reading the contract thoroughly...it specified a shooting period of about eight hours, and were it not for a kindly security guard (and a very quiet, unobtrusive, and well-run set), we could have lost some shots, plus the entirety of the last scene of the day.
A film project requires as much care in preparation as it does in scriptwriting or production. Michael Haskins has pointed out the need to spend preparation time not only in planning and casting, but in soundly establishing the basic structure of the project. There a number of recent cases of films gone awry, even right at the end, because of uncrossed t’s and “dealing with it later.”
Michael Haskins is an attorney at Haskins Law Group (http://haskinslawgroup.com), a member of CFVA, and an actor. He stars in the recent feature film The Aviation Cocktail, now in limited release - http://theaviationcocktail.com
Nelson Goforth is a veteran film lighting technician, long-time CFVA member, Red Epic owner, and occasional director and cinematographer, shooting the soon-to-be released Web of Lies, a short film noir made with Kathryn Gould. He has worked on over 40 features, MOWs and TV series.