Answers from Mark Litwak, Attorney At Law
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.
Question: Is it clearly illegal for a studio to use a title from a copyrighted screenplay for its own work? I copyrighted "Ruby Ridge: An "American Tragedy" as the title of my screenplay many months before CBS decided to produce their miniseries, which is not based on my screenplay. Nobody from CBS ever contacted me, and I have not been compensated.
Answer: Titles are not copyrightable. They can sometimes be protected under trademark laws and laws of unfair competition. In order for a title to be protected, it has to be associated with a series of work and distinguish them from other sources of manufacture than yourself. Another way to protect a title is to register the title with the MPAA, the Motion Picture Association of America, and the Title Registration Bureau, which is binding by virtue of a contract that all the participants and the signatory service sign.
Question: Quick questions on movie titles and trademarks. Prior to a movie being announced, marketed, promoted, and released can the movie title be considered a trademark? Are movie titles trademarkable? If a person owned an Internet domain name, e.g., www.XYZ.com and XYZ was the title of a movie that had not been released, and the title had not been used in a previous movie, would that person be infringing a trademark?
Answer: Trademarks protect product and service names, and company names. When a certain name becomes associated with a certain product or service, trademark rights arise. Some of these rights arise simply from use of the mark. Additional protections arise if you decide to register your trademark. Examples of famous trademarks are Xerox, Apple and IBM. If you are in the computer business, you cannot market your computers as Apple computers unless you have the permission of the company known by that name. Likewise, you cannot set up a hamburger stand across the street from McDonald's and call yourself McDonald's, put up golden arches, or in any way try to pass off your hamburgers as legitimate McDonald's hamburgers, when they are not.
However, titles of individual products like a movie are generally not eligible for trademark protection. Only a series of products from a single source, such as sequels or a television series such as Bonanza, can be protected under trademark law. However, for a one-shot project like a movie, the title would not be protected. The title, however, could possibly be protected under the laws of unfair competition once the title has acquired a secondary meaning. A movie cannot have a secondary meaning with the public before it is released. Thus, after George Lucas had produced and distributed Star Wars, another filmmaker could not distribute a movie called Star Wars II, and trade on the goodwill and name recognition of the original. This would be unfair competition, and would violate various federal and state laws. Whether the use of a name on a product or service violates the trademark rights, or violates various unfair competition laws, may be a difficult call.
Trademark rights are often restricted to a geographical area or type of product. For example, if you operate the Acme Hardware Store in Los Angeles, it would not necessarily prevent someone else from opening an Acme Hardware Store in Brooklyn, a location where you do not do business. Likewise, the fact that you operate a Hardware Store under the mark "Acme" would not prevent someone from setting up the Acme Supermarket because people do not associate hardware and food together. In other words, there is little likelihood of confusion.
Another way to protect titles is with registration with the MPAA. This is protection by contract law, through an arrangement between the MPAA companies and any independent producers who choose to join. It is a contract wherein all parties agree not to infringe each other's titles. There are some limitations because the deal is only binding on those people who choose to sign it. If you wish to contact the MPAA Title Registration Bureau, their number is (818) 995-6600.
Question: You have informed readers "there is limited protection by registering a title at the Motion Picture Association of America Title Registration Bureau." Is there similar protection for titles of television programming; i.e., series, specials, etc.? Thank you.
Answer: The title protection offered by the Motion Picture Association of America is limited because the agreement is only binding on signatories. These include all the member organizations of the MPAA, (essentially the major studios), and any independent producers who choose to sign the agreement. The MPAA does not register titles for television programs. For more information, you can contact the Motion Picture Association of America at (818) 995-6600 or go to their Website at http://www.mpaa.org.
Question: I just discovered your website from my screenwriting listserv group and find it very useful ... thanks! I have a question: My first screenplay in progress is called "Thorn of the Rose." I researched the WGA's site to see if this title was a duplication of another screenplay already written and registered but didn't find any resource on their site that listed every name of screenplays registered. Do I have to worry if that title is already taken?
Answer: Titles cannot be copyrighted, although use of a title in a confusing manner may give rise to an action for unfair competition. Of course, there may be a number of films that share the same title. If the other films that share your title are not likely to be confused with your film (perhaps they are very old, or are no longer being distributed) then you do not have much to worry about. Before finalizing your title, you may want to do a title search to see who else may have used the same or similar title. Title searches can be done through Dennis Angel (914) 472-0820 (online at http://www.lawyers.com/dennisangellaw) or Thomson & Thomson (800) 692-8833 (online at http://www.thomson-thomson.com).
Wednesday, May 05, 2004
Frequently Asked Questions: Setting Up a Company
Answers from Mark Litwak, Attorney At Law
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.
Question: I am an Independent Producer based in Maryland who is in the process of incorporating. Please advise me on how to proceed. Is it true that it's better to incorporate in Delaware rather than Maryland or Washington, DC?
Answer: There may be little or no advantage to incorporating in Delaware if you are going to have an office in another state and pay taxes there as well. Delaware is desirable because it has liberal corporate governance rules, which probably won't matter for a small company controlled by you. You should consult an attorney or tax accountant to determine the tax advantages and liability issues in regards to incorporating, and whether another form of business entity, such as an LLC might be more advantageous.
Question: I'm a low budget ($20,000) filmmaker preparing to shoot a guerrilla style film in New York City. I'm setting up a corporation and can't seem to get a straight answer on what kind I should set up. Option A, a straight-ahead S-Corp. owned by my partner and I, with investment contracts signed between our company and our investors, or we set up an LLC. What are the advantages and disadvantages of each?
Answer: The most common business entities used by filmmakers are corporations (S or C type), limited liability companies (LLC), and limited partnerships (LP). The best vehicle to use depends on the circumstances, which vary. The major factors are taxes and limiting liability.
One reason to form a company is the desire to protect personal assets from potential liability. If a company that is a separate legal entity from the filmmaker produces a movie, then the filmmaker may not be liable for the debts and obligations of the company. However, for the filmmaker to avoid personal liability, he must sign all contracts in the name of the company and not give any personal guarantees.
The limited liability company (LLC) is a relatively new form of business entity, which combines some of the best aspects of partnership and corporate forms of business while avoiding some of the drawbacks of each. Members of an LLC have the same limited liability protection granted limited partners and corporate shareholders. Unlike a corporation, however, an LLC has more flexibility as to how to pay taxes, and can largely avoid the problem of double taxation.
If your investors are passive investors, you need to comply with the security laws. Whether you do this as a limited partnership, an LLC, or some other method, it doesn't much matter. Complying with the security laws is what is expensive. You do this as a limited offering under Reg. D of the federal and various state analogous statutes, you would be limited to 35 unaccredited investors, you cannot do any public solicitation. Whether your corporation signs contracts with investors, or whether the investors are members of an LLC, the security laws apply either way. For a $20,000 film, it's hard to justify the legal work necessary to comply with the law, therefore, I would suggest you might want to structure your deal in such a way that the security laws don't apply. By taking the money as a gift, or having the investors actively participate in producing the movie, you might be able to avoid these requirements.
Question: I am forming a small independent film production company. Like many others in this position, I don't have a great deal of start-up cash and find the cost of incorporation in California to be prohibitive. I've read about a company that can provide legal services for incorporation for something around $100; additionally, it recommends Delaware as an attractive state in which to form the corporation. What legal and practical disadvantages (and what advantages) are there for a company whose main business is feature film production, to incorporate in Delaware? Also, is incorporation by a company offering this service for this low fee likely to be legally sound?
Answer: You can incorporate yourself simply by paying the state filing fees and any other charges. However, if you don't know what you are doing you may set up the company incorrectly, and the consequences may prove costly later. While you are at it, you can also go to a medical supply house, buy a scalpel and perform your own surgery. The point is that in order to correctly set up a corporation, you need a certain amount of expertise to determine among other things whether a corporation is the best business vehicle for you to do business. Perhaps a partnership or limited liability company would be better for you in your circumstances. As for incorporating in Delaware, Delaware has lax rules as far as corporate governance goes, which is important to large public corporations, but that does not necessarily save you much money, because if you are incorporated in Delaware and doing business in California, you are going to be subject to California tax. You should probably incorporate in the state where you have your primary place of business.
Question: My friend and I have shot a no-budget film that has been financed out of our own pockets and through donations from family members. In hopes of the movie being picked up we are planning to form a partnership. Should we go general or limited and do we need to consult with an attorney for the specifics of such a setup.
Answer: With a general partnership, all the partners have control over the enterprise and no one has limited liability. If everyone is comfortable with sharing decision-making and no one requires limited liability, that's the way to go. On the other hand, if you have passive investors, people who are going to put money into the enterprise but not be involved in managing it, a limited partnership would be the appropriate vehicle to achieve those ends. A limited partnership, however, is considered a security, and it needs to comply with the security laws, which can be fairly expensive. In a limited partnership, the limited partners have limited control and limited liability while the general partners in the limited partnership run the enterprise and have unlimited liability.
Question: I'm an independent producer here in St. Louis, and I'm putting together a trailer and business plan for fundraising purposes. I'm still not sure how I should raise money for this film. I've always been told that a "limited partnership" is the way to go, but now I'm hearing about other options (Loan Agreement, Limited Liability, etc). Most of the funds will come from family and friends. Is an LP necessary? And if one is, is it possible I can draft the contracts on my own (without a lawyer doing it) and still have them be legally binding. There are no entertainment attorneys here in St. Louis, and I don't want to pay for something I can do myself. Any advice would be helpful.
Answer: If you are making an arrangement with passive investors, that is investors who put money into the project, expect to share in the profits, and don't have any control over the project, then both state and federal securities laws apply. There is no exemption in the security laws simply because your investors are friends or family. So, technically, if you take money from them and don't comply with securities laws, you are in violation of the law.
A limited partnership provides limited liability to the investors, which is often important to them, and limits their control over the endeavor, which is often something that the general partner, the filmmaker, wants. Yes, you can draft contracts on your own, but that is no guarantee you'll do it correctly. Securities laws are extremely complex, and I would not advise you to do this on your own. If you want to save money, perhaps you should do some of the production legal work on your own.
Question: We have a project and are interested in soliciting investors without violating SEC rules. What can we say that's legal but still gets the point across, and what is illegal?
Answer: The most important thing to say is that you are not making an offer. You are simply having a preliminary discussion with people. In order to take money from investors, you need to either register your company with the SEC, which costs a considerable sum, or fall into one of the limited offering exemptions. A major restriction on these limited offerings exemptions is that you cannot do any public solicitations like mass mailings and cold-callings. And you'll be limited to thirty-five unaccredited investors. An accredited investor is essentially a wealthy, sophisticated investor. Everyone else is an unaccredited investor. If you can live with those restrictions, the cost of complying with securities laws is considerably less but still significant. If you violate the securities laws, you can be subject to civil and criminal penalties.
Question: Putting together a business plan just makes good business sense. However, I gather that it is a legal requirement. Is there a form that the SEC or state requires? If so, does the state supply it or is it boilerplate bought at a stationary store.
Answer: If you are raising money from private investors who will not be actively involved in producing the movie, their interests are called securities and you will need to comply with the state and federal security laws. These laws are very complex, and there are civil and criminal penalties for their violation. This is one area of the law where you need to retain experienced counsel to prepare a limited offering memorandum, usually accompanied with a proposed LLC or Limited Partnership Agreement. Don't do it yourself unless you are the type of person who thinks it would be okay to do brain surgery on yourself.
Question: I want to shoot a low budget film. My question is, is it better to form a corporation or a limited liability partnership?
Answer: The question of what is the best vehicle depends on several factors, primarily liability and taxes. Today most independent filmmakers will either: (1) incorporate, (2) form a limited liability company, or (3) form a limited partnership with their investors being the limited partners. If you set up an entity that is considered a separate legal entity from yourself, this may insulate you from liability should someone be injured during the shoot or a lawsuit arise. Establishing a separate entity may have some tax consequences, however, which could be either positive or negative.
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.
Question: I am an Independent Producer based in Maryland who is in the process of incorporating. Please advise me on how to proceed. Is it true that it's better to incorporate in Delaware rather than Maryland or Washington, DC?
Answer: There may be little or no advantage to incorporating in Delaware if you are going to have an office in another state and pay taxes there as well. Delaware is desirable because it has liberal corporate governance rules, which probably won't matter for a small company controlled by you. You should consult an attorney or tax accountant to determine the tax advantages and liability issues in regards to incorporating, and whether another form of business entity, such as an LLC might be more advantageous.
Question: I'm a low budget ($20,000) filmmaker preparing to shoot a guerrilla style film in New York City. I'm setting up a corporation and can't seem to get a straight answer on what kind I should set up. Option A, a straight-ahead S-Corp. owned by my partner and I, with investment contracts signed between our company and our investors, or we set up an LLC. What are the advantages and disadvantages of each?
Answer: The most common business entities used by filmmakers are corporations (S or C type), limited liability companies (LLC), and limited partnerships (LP). The best vehicle to use depends on the circumstances, which vary. The major factors are taxes and limiting liability.
One reason to form a company is the desire to protect personal assets from potential liability. If a company that is a separate legal entity from the filmmaker produces a movie, then the filmmaker may not be liable for the debts and obligations of the company. However, for the filmmaker to avoid personal liability, he must sign all contracts in the name of the company and not give any personal guarantees.
The limited liability company (LLC) is a relatively new form of business entity, which combines some of the best aspects of partnership and corporate forms of business while avoiding some of the drawbacks of each. Members of an LLC have the same limited liability protection granted limited partners and corporate shareholders. Unlike a corporation, however, an LLC has more flexibility as to how to pay taxes, and can largely avoid the problem of double taxation.
If your investors are passive investors, you need to comply with the security laws. Whether you do this as a limited partnership, an LLC, or some other method, it doesn't much matter. Complying with the security laws is what is expensive. You do this as a limited offering under Reg. D of the federal and various state analogous statutes, you would be limited to 35 unaccredited investors, you cannot do any public solicitation. Whether your corporation signs contracts with investors, or whether the investors are members of an LLC, the security laws apply either way. For a $20,000 film, it's hard to justify the legal work necessary to comply with the law, therefore, I would suggest you might want to structure your deal in such a way that the security laws don't apply. By taking the money as a gift, or having the investors actively participate in producing the movie, you might be able to avoid these requirements.
Question: I am forming a small independent film production company. Like many others in this position, I don't have a great deal of start-up cash and find the cost of incorporation in California to be prohibitive. I've read about a company that can provide legal services for incorporation for something around $100; additionally, it recommends Delaware as an attractive state in which to form the corporation. What legal and practical disadvantages (and what advantages) are there for a company whose main business is feature film production, to incorporate in Delaware? Also, is incorporation by a company offering this service for this low fee likely to be legally sound?
Answer: You can incorporate yourself simply by paying the state filing fees and any other charges. However, if you don't know what you are doing you may set up the company incorrectly, and the consequences may prove costly later. While you are at it, you can also go to a medical supply house, buy a scalpel and perform your own surgery. The point is that in order to correctly set up a corporation, you need a certain amount of expertise to determine among other things whether a corporation is the best business vehicle for you to do business. Perhaps a partnership or limited liability company would be better for you in your circumstances. As for incorporating in Delaware, Delaware has lax rules as far as corporate governance goes, which is important to large public corporations, but that does not necessarily save you much money, because if you are incorporated in Delaware and doing business in California, you are going to be subject to California tax. You should probably incorporate in the state where you have your primary place of business.
Question: My friend and I have shot a no-budget film that has been financed out of our own pockets and through donations from family members. In hopes of the movie being picked up we are planning to form a partnership. Should we go general or limited and do we need to consult with an attorney for the specifics of such a setup.
Answer: With a general partnership, all the partners have control over the enterprise and no one has limited liability. If everyone is comfortable with sharing decision-making and no one requires limited liability, that's the way to go. On the other hand, if you have passive investors, people who are going to put money into the enterprise but not be involved in managing it, a limited partnership would be the appropriate vehicle to achieve those ends. A limited partnership, however, is considered a security, and it needs to comply with the security laws, which can be fairly expensive. In a limited partnership, the limited partners have limited control and limited liability while the general partners in the limited partnership run the enterprise and have unlimited liability.
Question: I'm an independent producer here in St. Louis, and I'm putting together a trailer and business plan for fundraising purposes. I'm still not sure how I should raise money for this film. I've always been told that a "limited partnership" is the way to go, but now I'm hearing about other options (Loan Agreement, Limited Liability, etc). Most of the funds will come from family and friends. Is an LP necessary? And if one is, is it possible I can draft the contracts on my own (without a lawyer doing it) and still have them be legally binding. There are no entertainment attorneys here in St. Louis, and I don't want to pay for something I can do myself. Any advice would be helpful.
Answer: If you are making an arrangement with passive investors, that is investors who put money into the project, expect to share in the profits, and don't have any control over the project, then both state and federal securities laws apply. There is no exemption in the security laws simply because your investors are friends or family. So, technically, if you take money from them and don't comply with securities laws, you are in violation of the law.
A limited partnership provides limited liability to the investors, which is often important to them, and limits their control over the endeavor, which is often something that the general partner, the filmmaker, wants. Yes, you can draft contracts on your own, but that is no guarantee you'll do it correctly. Securities laws are extremely complex, and I would not advise you to do this on your own. If you want to save money, perhaps you should do some of the production legal work on your own.
Question: We have a project and are interested in soliciting investors without violating SEC rules. What can we say that's legal but still gets the point across, and what is illegal?
Answer: The most important thing to say is that you are not making an offer. You are simply having a preliminary discussion with people. In order to take money from investors, you need to either register your company with the SEC, which costs a considerable sum, or fall into one of the limited offering exemptions. A major restriction on these limited offerings exemptions is that you cannot do any public solicitations like mass mailings and cold-callings. And you'll be limited to thirty-five unaccredited investors. An accredited investor is essentially a wealthy, sophisticated investor. Everyone else is an unaccredited investor. If you can live with those restrictions, the cost of complying with securities laws is considerably less but still significant. If you violate the securities laws, you can be subject to civil and criminal penalties.
Question: Putting together a business plan just makes good business sense. However, I gather that it is a legal requirement. Is there a form that the SEC or state requires? If so, does the state supply it or is it boilerplate bought at a stationary store.
Answer: If you are raising money from private investors who will not be actively involved in producing the movie, their interests are called securities and you will need to comply with the state and federal security laws. These laws are very complex, and there are civil and criminal penalties for their violation. This is one area of the law where you need to retain experienced counsel to prepare a limited offering memorandum, usually accompanied with a proposed LLC or Limited Partnership Agreement. Don't do it yourself unless you are the type of person who thinks it would be okay to do brain surgery on yourself.
Question: I want to shoot a low budget film. My question is, is it better to form a corporation or a limited liability partnership?
Answer: The question of what is the best vehicle depends on several factors, primarily liability and taxes. Today most independent filmmakers will either: (1) incorporate, (2) form a limited liability company, or (3) form a limited partnership with their investors being the limited partners. If you set up an entity that is considered a separate legal entity from yourself, this may insulate you from liability should someone be injured during the shoot or a lawsuit arise. Establishing a separate entity may have some tax consequences, however, which could be either positive or negative.
Frequently Asked Questions: Securing Rights
Answers from Mark Litwak, Attorney At Law
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.
Question: What's the proper procedure in trying to secure the rights to a feature property owned by a major distributor?
Answer: First, determine if the distributor or owner of the rights is willing to option or sell any rights to you. If a major studio has decided not to pursue the project itself, the producer who brought that property to the studio may have a turnaround or reversion clause enabling him/her to regain rights to the property. Moreover, if a distributor optioned a property, and the option lapsed without being exercised, the rights to the property may now reside with the author.
Question: I recently learned of a French book I would like to try and set up as a film here in the U.S. The publisher informed me a French production company is making a French version of the film right now. Is it possible to get English language rights from the producers in France and make the film here in English, or are the film rights tied up in one film/one language?
Answer: You need to contact the owner and review the deal made by him/her with the French company. If the owner licensed all rights to the French company, then you will need to negotiate with the French production company. If the owner, reserved English language rights, you could license them.
Question: I am currently working on an animation project that we have just pitched to a large animation production company. Till this point every company that has seen our project has been interested by the merchandising potential of our character(s) and concept. (We have heard the words "Teenage Mutant Ninja Turtles" many a time over the past year.)
The problem we have had up until this point is that we want to retain at least a good portion of the ownership and rights to our characters and concept. So far we have walked twice just for that reason. We were told it was not possible to keep the rights to our characters and ownership was unheard of in the industry. We have just pitched our idea, and though we have not heard if they plan to develop our concept, I am wondering if we are going to hit the same roadblock. They have told me off the bat that ownership was negotiable, but that was before they saw our material. My questions are: (1) What can I expect in reference to ownership? (2) How much is an idea worth in this business? They have told us that should they decide to develop our idea, they had the capability to finance it in-house (something they say they previously have not been able to do) and I'm almost anticipating them downplaying our idea for the reason of getting more out of the deal. We are essentially greenhorns, and I don't blame them for trying such a thing, but what is a good way to deter or counterattack such a tactic. Any suggestions would be greatly appreciated.
Answer: It is possible to retain merchandising rights. George Lucas did that on "Star Wars." However, your ability to retain merchandising rights will depend upon your negotiating clout and stature in the business. If you are just beginning, you may find it difficult to retain ownership rights.
Besides retaining ownership rights, there is also the issue as to how revenues from exploitation of the material are to be shared. If you gave up ownership rights, but were entitled to significant participation in revenues that were derived from your work, that might be a deal worth considering, if the company is reputable and if you have adequate assurances that you would actually be paid the money due to you.
Question: I've been offered an opportunity to write a screenplay under a Work Made for Hire agreement. I have written several screenplays of my own—the writing isn't the problem—it's the Work for Hire arrangement. Thus far, I've been given a very brief treatment and a contract stating that I essentially claim no rights to the "Owner's" film, which is fine. (I have not signed the contract as yet, by the way.) However, the treatment is very sketchy and in discussion with the owner I've been able to show him where particular aspects of his story might not work.
After researching the issue, he agreed that he had some flaws in his treatment and wanted to know how I thought they should be fixed. Basically, my question is this: What are my responsibilities in this type of relationship? To me it seems there should be a clear line between putting someone's developed story into script format and developing the story, plot, back-story, etc., which is what he's trying to have me do. If I'm developing the story, plot, etc., doesn't that then make me a co-writer? Or is this what "Work Made for Hire" is all about—the writer comes up with the story and the "Owner" gets all the glory?
Answer: The issue of who gets the glory and the credit is separate from who owns the property. In a work-for-hire arrangement, typically the employer owns the copyright to the work. The writer, however, may be entitled to sole or shared screenwriter credit. Keep in mind that if this is a Writers Guild agreement, the producer doesn't have the final say about the writing credit anyway. That's subject to Writers Guild arbitration.
Question: I am writing a book and within the book I would like to include a monologue from a major motion picture. How would I go about getting an "okay" from the motion picture company to do that? Who would I contact?
Answer: The studio that released the major motion picture most likely owns the copyright to it. Sometimes, however, a production company might retain the copyright and simply arrange for distribution by contract. At any rate, you should start by contacting the legal department at the studio that has released the picture to find out who owns the rights to the script. You cannot use a monologue from a major motion picture on another work without violating the copyright of the motion picture. There are a couple of exceptions. If the copyright for the motion picture has expired, then you can use the dialogue, or if you are using just a very short portion of the monologue, it might fall within the fair use doctrine.
Question: I am interested in remaking a variation of an old Hitchcock film. Would you direct me on how I should proceed so as not to incur any legal problems?
Answer: It is unlikely that the old Hitchcock film is in the public domain. Therefore, you will need to secure permission from the copyright owner. A good place to start is the studio that released the film. You should contact their legal department to determine who owns the copyright to the film. It is probably either the producer or a distributor. Then, you need to determine who owns the remake rights.
Question: How does Lucasfilm own the merchandising/licensing rights to all of the "Star Wars" episodes? Wouldn't the studio have control over that? Or do you have to be a heavy hitter like George Lucas to negotiate for that? My real question is this: Say I have a potential franchise movie idea and I would like to control (or at least participate in) the merchandising/licensing opportunities. Who controls those rights to begin with?
Answer: George Lucas was shrewd to reserve the merchandising rights when negotiating his deal with 20th Century Fox. Undoubtedly the studio did not realize how successful his picture would be, and how lucrative the various merchandising spin-offs would become. There is nothing preventing you when you negotiate with a distributor to reserve these rights. That being said, most distributors have awakened to merchandising potential from feature films, and they often insist on controlling these rights. If they pay you enough money, you may want to relinquish the rights.
Question: I am currently working with a member of one of the most popular bands of the Sixties on his story as a screenplay. I need to know what rights and clearances I need to use certain material. I don't mind controversy; I just don't want this project in any legal trouble. Thank you for your time, knowledge, and help.
Answer: The rights you need depend upon what you are planning to do. Certainly if you are going to be using the music of one of these bands, you will need to obtain various rights from the music owners. This may include composers, record companies and publishers of the music, as well as any musicians, vocalists, and lyricists. If you are going to be showing any footage of the band from prior performances, then you will need permission from the copyright owner of those film clips. If you are simply doing a documentary about the band, and not planning to incorporate any of their music, you may not need any rights. Assuming you don't defame them or invade their privacy, you may be protected under the First Amendment. But it seems to me to be particularly difficult to do a movie about a band without using some of their music.
Question: How does one go about obtaining the rights for movies for public viewing as does such stores as Blockbuster and home rental centers?
Answer: Tapes you rent from Blockbuster and other retail home video outlets are for home use only. These retailers do not have the right to license public performance rights. For this you need to contract directly with the copyright owner or licensee, which is often the distributor of the film.
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.
Question: What's the proper procedure in trying to secure the rights to a feature property owned by a major distributor?
Answer: First, determine if the distributor or owner of the rights is willing to option or sell any rights to you. If a major studio has decided not to pursue the project itself, the producer who brought that property to the studio may have a turnaround or reversion clause enabling him/her to regain rights to the property. Moreover, if a distributor optioned a property, and the option lapsed without being exercised, the rights to the property may now reside with the author.
Question: I recently learned of a French book I would like to try and set up as a film here in the U.S. The publisher informed me a French production company is making a French version of the film right now. Is it possible to get English language rights from the producers in France and make the film here in English, or are the film rights tied up in one film/one language?
Answer: You need to contact the owner and review the deal made by him/her with the French company. If the owner licensed all rights to the French company, then you will need to negotiate with the French production company. If the owner, reserved English language rights, you could license them.
Question: I am currently working on an animation project that we have just pitched to a large animation production company. Till this point every company that has seen our project has been interested by the merchandising potential of our character(s) and concept. (We have heard the words "Teenage Mutant Ninja Turtles" many a time over the past year.)
The problem we have had up until this point is that we want to retain at least a good portion of the ownership and rights to our characters and concept. So far we have walked twice just for that reason. We were told it was not possible to keep the rights to our characters and ownership was unheard of in the industry. We have just pitched our idea, and though we have not heard if they plan to develop our concept, I am wondering if we are going to hit the same roadblock. They have told me off the bat that ownership was negotiable, but that was before they saw our material. My questions are: (1) What can I expect in reference to ownership? (2) How much is an idea worth in this business? They have told us that should they decide to develop our idea, they had the capability to finance it in-house (something they say they previously have not been able to do) and I'm almost anticipating them downplaying our idea for the reason of getting more out of the deal. We are essentially greenhorns, and I don't blame them for trying such a thing, but what is a good way to deter or counterattack such a tactic. Any suggestions would be greatly appreciated.
Answer: It is possible to retain merchandising rights. George Lucas did that on "Star Wars." However, your ability to retain merchandising rights will depend upon your negotiating clout and stature in the business. If you are just beginning, you may find it difficult to retain ownership rights.
Besides retaining ownership rights, there is also the issue as to how revenues from exploitation of the material are to be shared. If you gave up ownership rights, but were entitled to significant participation in revenues that were derived from your work, that might be a deal worth considering, if the company is reputable and if you have adequate assurances that you would actually be paid the money due to you.
Question: I've been offered an opportunity to write a screenplay under a Work Made for Hire agreement. I have written several screenplays of my own—the writing isn't the problem—it's the Work for Hire arrangement. Thus far, I've been given a very brief treatment and a contract stating that I essentially claim no rights to the "Owner's" film, which is fine. (I have not signed the contract as yet, by the way.) However, the treatment is very sketchy and in discussion with the owner I've been able to show him where particular aspects of his story might not work.
After researching the issue, he agreed that he had some flaws in his treatment and wanted to know how I thought they should be fixed. Basically, my question is this: What are my responsibilities in this type of relationship? To me it seems there should be a clear line between putting someone's developed story into script format and developing the story, plot, back-story, etc., which is what he's trying to have me do. If I'm developing the story, plot, etc., doesn't that then make me a co-writer? Or is this what "Work Made for Hire" is all about—the writer comes up with the story and the "Owner" gets all the glory?
Answer: The issue of who gets the glory and the credit is separate from who owns the property. In a work-for-hire arrangement, typically the employer owns the copyright to the work. The writer, however, may be entitled to sole or shared screenwriter credit. Keep in mind that if this is a Writers Guild agreement, the producer doesn't have the final say about the writing credit anyway. That's subject to Writers Guild arbitration.
Question: I am writing a book and within the book I would like to include a monologue from a major motion picture. How would I go about getting an "okay" from the motion picture company to do that? Who would I contact?
Answer: The studio that released the major motion picture most likely owns the copyright to it. Sometimes, however, a production company might retain the copyright and simply arrange for distribution by contract. At any rate, you should start by contacting the legal department at the studio that has released the picture to find out who owns the rights to the script. You cannot use a monologue from a major motion picture on another work without violating the copyright of the motion picture. There are a couple of exceptions. If the copyright for the motion picture has expired, then you can use the dialogue, or if you are using just a very short portion of the monologue, it might fall within the fair use doctrine.
Question: I am interested in remaking a variation of an old Hitchcock film. Would you direct me on how I should proceed so as not to incur any legal problems?
Answer: It is unlikely that the old Hitchcock film is in the public domain. Therefore, you will need to secure permission from the copyright owner. A good place to start is the studio that released the film. You should contact their legal department to determine who owns the copyright to the film. It is probably either the producer or a distributor. Then, you need to determine who owns the remake rights.
Question: How does Lucasfilm own the merchandising/licensing rights to all of the "Star Wars" episodes? Wouldn't the studio have control over that? Or do you have to be a heavy hitter like George Lucas to negotiate for that? My real question is this: Say I have a potential franchise movie idea and I would like to control (or at least participate in) the merchandising/licensing opportunities. Who controls those rights to begin with?
Answer: George Lucas was shrewd to reserve the merchandising rights when negotiating his deal with 20th Century Fox. Undoubtedly the studio did not realize how successful his picture would be, and how lucrative the various merchandising spin-offs would become. There is nothing preventing you when you negotiate with a distributor to reserve these rights. That being said, most distributors have awakened to merchandising potential from feature films, and they often insist on controlling these rights. If they pay you enough money, you may want to relinquish the rights.
Question: I am currently working with a member of one of the most popular bands of the Sixties on his story as a screenplay. I need to know what rights and clearances I need to use certain material. I don't mind controversy; I just don't want this project in any legal trouble. Thank you for your time, knowledge, and help.
Answer: The rights you need depend upon what you are planning to do. Certainly if you are going to be using the music of one of these bands, you will need to obtain various rights from the music owners. This may include composers, record companies and publishers of the music, as well as any musicians, vocalists, and lyricists. If you are going to be showing any footage of the band from prior performances, then you will need permission from the copyright owner of those film clips. If you are simply doing a documentary about the band, and not planning to incorporate any of their music, you may not need any rights. Assuming you don't defame them or invade their privacy, you may be protected under the First Amendment. But it seems to me to be particularly difficult to do a movie about a band without using some of their music.
Question: How does one go about obtaining the rights for movies for public viewing as does such stores as Blockbuster and home rental centers?
Answer: Tapes you rent from Blockbuster and other retail home video outlets are for home use only. These retailers do not have the right to license public performance rights. For this you need to contract directly with the copyright owner or licensee, which is often the distributor of the film.
Frequently Asked Questions: Representation
Answers from Mark Litwak, Attorney At Law
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.
Question: I am interested in having an entertainment attorney submit my screenplay to production companies. How is this handled? Will producers generally read unsolicited scripts submitted this way, or should query letters be sent first? Is getting an attorney as difficult as getting an agent? And how much would it cost?
Answer: While I will submit projects for existing clients, I personally will not accept new client if all that is needed is someone to submit scripts for them. I don't consider acting as a submission service to be legal work. Other attorneys may feel differently. Cost for entertainment attorneys is usually $250-$450 an hour. Yes, you should send a query letter first.
Question: I am a CA attorney and am also acting as a producer's rep for certain projects; I'm also considering shopping just scripts for several writers. Can you recommend a practice guide or bar material (CA) that addresses talent agency issues? I am particularly looking at these issues: When does legal representation cross over into agenting; Agency-client contracts, particularly for writers and below-the-line personnel; when does pitching a screenplay for a client cross the line into agenting, where a license is required; it is my understanding that agents can't also be producers (or more to the point agencies can't also be production companies, but personal managers can, i.e., Brillstein-Grey). Also, if repping scripts is agenting, which would preclude me from producing, as I suspect it would, what do you think of the idea of flipping options (optioning material, finding a buyer, assigning the option, and taking a fee or percentage when the option is exercised), as a way around the agent issue. Thanks for the advice.
Answer: Attorneys are regulated by the state bar and agents are regulated by the state labor department. Personal managers are not regulated at all, at least not at the present time in California. The difference between a talent agent and a personal manager is this: talent agents can solicit work for their clients. Personal managers are not supposed to. If a personal manager does solicit work, they can be liable and lose all their commissions. Although I don't know of any case law on this point, I would think that lawyers who perform functions similar to agents or personal managers would be subject to discipline under the state bar, not under labor department regulations. I don't know of any publications that discuss this issue.
Question: Could you please tell me what the going rate is for an entertainment attorney services for a single $2 million independent film (shot in a non-union state? I am attempting to hire an attorney and an accountant and I live in an area where film folks are lacking (in these fields).
Answer: Most attorneys in the motion picture business who practice entertainment law full-time reside in New York or Los Angeles areas. I doubt you would want to hire someone who doesn't specialize in this practice area. The going rates vary between two and four hundred dollars per hour, but some services, such as production legal work, may be performed on a flat fee basis. Generally, 1–1.5% of the budget is spent on production legal services. Hourly rates may be misleading. If you hire an experienced attorney at $400/hour and he or she can accomplish your task in one hour, that's a better deal economically then hiring a recent law grad at $100/hour who requires eight hours to complete the same task and then may not get it right. Hire someone who knows what they are doing and who is not learning on your dime.
Question: I live in Oklahoma and I have written a couple of scripts for "The Simpsons." Unfortunately, they only accept scripts that are submitted through agents, and, since I live in Oklahoma, I don't have one. A friend of mine advised me to consult you as to whether or not it would be possible to submit my scripts through an attorney. If I can, what steps should I take to get my scripts to an attorney?
Answer: You can write to entertainment attorneys and see if they are willing to represent you. Many attorneys however, myself included, do not like to be retained by clients simply to act as a script submission service. This is not really legal work. The companies that require that scripts be submitted through an agent attorney or attorney are simply using this as a device to filter out novices. They figure if a person is able to obtain an attorney or an agent, he/she is probably not an amateur. A listing of entertainment attorneys can be found in the Hollywood Bluebook directory, published by the Hollywood Reporter.
Question: I am a first-time screenwriter who has just been offered an option on an original spec screenplay. The producer in question wants to pay a token (c. $10/mo) amount for the exclusive rights to market and develop the project. My inclination is to move forward with the option. However, since I am not represented, I have anxieties about signing any agreement that may affect the future of my work. My questions: first, is there a pro-forma model of an option agreement that I can use as a reference; and second, how do I go about attaining representation?
Answer: An option agreement is generally one or two pages, but attached to it as an exhibit is the purchase agreement which is much more extensive. There is a sample agreement in my book, Contracts in the Film and Television Industry published by Silman-James Press. It can be found in bookstores and libraries. You should be cautious about using a form that you don't understand. Other people's forms were not drafted with your particular situation in mind. As for obtaining representation, you can retain a lawyer by paying him or her a fee or you can seek an agent to represent you on a contingent fee basis. Generally, agents are looking for writers who have some track record and are sellable to the publishing or entertainment community.
Question: Everyone knows about deferred pay for cast & crew in the independent/ low-budget film world. But do any entertainment attorneys that you are aware of offer their services on an entirely or partially deferred basis? Thanks for any info!
Answer: Most experienced entertainment attorneys do not work on an entirely deferred basis. Many will give a reduced rate or accept part payment on a deferred basis for low budget films. There may be some young attorneys wanting to break into the business who would be willing to work for free.
Question: I have several screenplays that I would like to submit directly to Production Companies, as I have had no luck in gaining the services of an Agent. Can a lawyer submit a screenplay directly to a production company and how would he go about it?
Answer: Yes, a lawyer who practices entertainment law can submit your project to production companies. However, many lawyers are not particularly interested in acting as a submission service. This is not really legal work; it is more of a clerical task. For myself, I will not take on a new client if their only need is to submit projects. An agent on the other hand, works strictly on a contingent fee basis, and the whole focus of their job is to find work for their clients, and sell their client's projects. For what you need done, an agent is more appropriate.
Question: I have a TV series that I will be pitching to production companies and networks. I do not have an agent. Would it be wise to have an entertainment lawyer already on retainer? And how important is it in picking one, can some actually help steer you towards agents and production companies?
Answer: You do not need a lawyer to accompany you when you go in to pitch your TV series. Only at the point where the other side says they want to make a deal is it important that you retain an attorney. I would advise you not to try to negotiate the deal yourself. Discuss the creative aspects of the endeavor. When you get to a point where they express a willingness to do a deal, they will have their business affairs person contact your attorney. In answer to your second question, yes, entertainment attorneys can help steer you towards agents and production companies, although many of them may be reluctant to take you on as a client if that is the sole purpose for retaining them.
Question: Help! I am working on a few script ideas I have for a currently running TV series namely Frasier and I need some advice, please. I contacted the studio and was able to find out that the series accepts at least one freelance script per year. I believe I have at least one script with a very good shot. The problem is they say I must have representation, an agent, but in that department I am at square one. I have contacted and received some listings from WGA and SAG. However, is there any particular agency you would recommend especially for new writers like me? Also, agent or no, would it be wise to get a copyright for my scripts before I show them to anyone at all. Thank you.
Answer: If you are a beginning writer, you may find it difficult to obtain any agent to represent you. Agents on the WGA list are agents who have signed franchise agreements with the WGA. Therefore, if you sign with one of these agents, you will not only be protected under labor laws, but also pursuant to the contract between the WGA and the agent. I would avoid agents that purport to represent writers who are not franchised by the WGA. I would definitely not sign with an agent who is not licensed by the state labor department in those states that license talent agents.
As for copyrighting the script, you obtain a copyright to your script when you create it, assuming it meets the other requirements of copyright law. You may choose to register your copyright, which would be a wise idea at any rate.
Question: I (the ARTIST) may enter into a screenplay option contract with two separate producers who are designated together as the "collective PURCHASER" in the language of the contract. The consideration offered to me as payment is a check for $500.00. Now let's say, hypothetically, that ten weeks after all parties sign the contract, PRODUCER A wants out of the deal and asks for the consideration check to be returned. As it happens I never cashed the check and I agree to PRODUCER A's request and return the un-cashed consideration check for $500.00. My question is this. Do I still have a binding contract with PRODUCER B or would I then have to renegotiate a separate contract with PRODUCER B because both were named collectively as the PURCHASER?
Answer: If Producer A has signed the contract, he cannot unilaterally withdraw. You are under no obligation to give him his money back. Assuming Producer B was a signatory of the contract, he is bound by it as well. You need to look at the terms of the contract to determine the respective rights of the parties.
Question: Where on the Internet might I find a sample non-disclosure form or contract. I have written a teleplay and treatment and want to cover myself legally when I submit it to interested parties. Also, what else do I need?
Answer: If the interested parties are producers or studio executives, not only will they refuse to sign your nondisclosure agreement, they will probably insist that you sign a submission release instead. There are copies of these documents in my book Contracts for the Film and Television Industry, 2nd Ed., Silman-James Press.
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.
Question: I am interested in having an entertainment attorney submit my screenplay to production companies. How is this handled? Will producers generally read unsolicited scripts submitted this way, or should query letters be sent first? Is getting an attorney as difficult as getting an agent? And how much would it cost?
Answer: While I will submit projects for existing clients, I personally will not accept new client if all that is needed is someone to submit scripts for them. I don't consider acting as a submission service to be legal work. Other attorneys may feel differently. Cost for entertainment attorneys is usually $250-$450 an hour. Yes, you should send a query letter first.
Question: I am a CA attorney and am also acting as a producer's rep for certain projects; I'm also considering shopping just scripts for several writers. Can you recommend a practice guide or bar material (CA) that addresses talent agency issues? I am particularly looking at these issues: When does legal representation cross over into agenting; Agency-client contracts, particularly for writers and below-the-line personnel; when does pitching a screenplay for a client cross the line into agenting, where a license is required; it is my understanding that agents can't also be producers (or more to the point agencies can't also be production companies, but personal managers can, i.e., Brillstein-Grey). Also, if repping scripts is agenting, which would preclude me from producing, as I suspect it would, what do you think of the idea of flipping options (optioning material, finding a buyer, assigning the option, and taking a fee or percentage when the option is exercised), as a way around the agent issue. Thanks for the advice.
Answer: Attorneys are regulated by the state bar and agents are regulated by the state labor department. Personal managers are not regulated at all, at least not at the present time in California. The difference between a talent agent and a personal manager is this: talent agents can solicit work for their clients. Personal managers are not supposed to. If a personal manager does solicit work, they can be liable and lose all their commissions. Although I don't know of any case law on this point, I would think that lawyers who perform functions similar to agents or personal managers would be subject to discipline under the state bar, not under labor department regulations. I don't know of any publications that discuss this issue.
Question: Could you please tell me what the going rate is for an entertainment attorney services for a single $2 million independent film (shot in a non-union state? I am attempting to hire an attorney and an accountant and I live in an area where film folks are lacking (in these fields).
Answer: Most attorneys in the motion picture business who practice entertainment law full-time reside in New York or Los Angeles areas. I doubt you would want to hire someone who doesn't specialize in this practice area. The going rates vary between two and four hundred dollars per hour, but some services, such as production legal work, may be performed on a flat fee basis. Generally, 1–1.5% of the budget is spent on production legal services. Hourly rates may be misleading. If you hire an experienced attorney at $400/hour and he or she can accomplish your task in one hour, that's a better deal economically then hiring a recent law grad at $100/hour who requires eight hours to complete the same task and then may not get it right. Hire someone who knows what they are doing and who is not learning on your dime.
Question: I live in Oklahoma and I have written a couple of scripts for "The Simpsons." Unfortunately, they only accept scripts that are submitted through agents, and, since I live in Oklahoma, I don't have one. A friend of mine advised me to consult you as to whether or not it would be possible to submit my scripts through an attorney. If I can, what steps should I take to get my scripts to an attorney?
Answer: You can write to entertainment attorneys and see if they are willing to represent you. Many attorneys however, myself included, do not like to be retained by clients simply to act as a script submission service. This is not really legal work. The companies that require that scripts be submitted through an agent attorney or attorney are simply using this as a device to filter out novices. They figure if a person is able to obtain an attorney or an agent, he/she is probably not an amateur. A listing of entertainment attorneys can be found in the Hollywood Bluebook directory, published by the Hollywood Reporter.
Question: I am a first-time screenwriter who has just been offered an option on an original spec screenplay. The producer in question wants to pay a token (c. $10/mo) amount for the exclusive rights to market and develop the project. My inclination is to move forward with the option. However, since I am not represented, I have anxieties about signing any agreement that may affect the future of my work. My questions: first, is there a pro-forma model of an option agreement that I can use as a reference; and second, how do I go about attaining representation?
Answer: An option agreement is generally one or two pages, but attached to it as an exhibit is the purchase agreement which is much more extensive. There is a sample agreement in my book, Contracts in the Film and Television Industry published by Silman-James Press. It can be found in bookstores and libraries. You should be cautious about using a form that you don't understand. Other people's forms were not drafted with your particular situation in mind. As for obtaining representation, you can retain a lawyer by paying him or her a fee or you can seek an agent to represent you on a contingent fee basis. Generally, agents are looking for writers who have some track record and are sellable to the publishing or entertainment community.
Question: Everyone knows about deferred pay for cast & crew in the independent/ low-budget film world. But do any entertainment attorneys that you are aware of offer their services on an entirely or partially deferred basis? Thanks for any info!
Answer: Most experienced entertainment attorneys do not work on an entirely deferred basis. Many will give a reduced rate or accept part payment on a deferred basis for low budget films. There may be some young attorneys wanting to break into the business who would be willing to work for free.
Question: I have several screenplays that I would like to submit directly to Production Companies, as I have had no luck in gaining the services of an Agent. Can a lawyer submit a screenplay directly to a production company and how would he go about it?
Answer: Yes, a lawyer who practices entertainment law can submit your project to production companies. However, many lawyers are not particularly interested in acting as a submission service. This is not really legal work; it is more of a clerical task. For myself, I will not take on a new client if their only need is to submit projects. An agent on the other hand, works strictly on a contingent fee basis, and the whole focus of their job is to find work for their clients, and sell their client's projects. For what you need done, an agent is more appropriate.
Question: I have a TV series that I will be pitching to production companies and networks. I do not have an agent. Would it be wise to have an entertainment lawyer already on retainer? And how important is it in picking one, can some actually help steer you towards agents and production companies?
Answer: You do not need a lawyer to accompany you when you go in to pitch your TV series. Only at the point where the other side says they want to make a deal is it important that you retain an attorney. I would advise you not to try to negotiate the deal yourself. Discuss the creative aspects of the endeavor. When you get to a point where they express a willingness to do a deal, they will have their business affairs person contact your attorney. In answer to your second question, yes, entertainment attorneys can help steer you towards agents and production companies, although many of them may be reluctant to take you on as a client if that is the sole purpose for retaining them.
Question: Help! I am working on a few script ideas I have for a currently running TV series namely Frasier and I need some advice, please. I contacted the studio and was able to find out that the series accepts at least one freelance script per year. I believe I have at least one script with a very good shot. The problem is they say I must have representation, an agent, but in that department I am at square one. I have contacted and received some listings from WGA and SAG. However, is there any particular agency you would recommend especially for new writers like me? Also, agent or no, would it be wise to get a copyright for my scripts before I show them to anyone at all. Thank you.
Answer: If you are a beginning writer, you may find it difficult to obtain any agent to represent you. Agents on the WGA list are agents who have signed franchise agreements with the WGA. Therefore, if you sign with one of these agents, you will not only be protected under labor laws, but also pursuant to the contract between the WGA and the agent. I would avoid agents that purport to represent writers who are not franchised by the WGA. I would definitely not sign with an agent who is not licensed by the state labor department in those states that license talent agents.
As for copyrighting the script, you obtain a copyright to your script when you create it, assuming it meets the other requirements of copyright law. You may choose to register your copyright, which would be a wise idea at any rate.
Question: I (the ARTIST) may enter into a screenplay option contract with two separate producers who are designated together as the "collective PURCHASER" in the language of the contract. The consideration offered to me as payment is a check for $500.00. Now let's say, hypothetically, that ten weeks after all parties sign the contract, PRODUCER A wants out of the deal and asks for the consideration check to be returned. As it happens I never cashed the check and I agree to PRODUCER A's request and return the un-cashed consideration check for $500.00. My question is this. Do I still have a binding contract with PRODUCER B or would I then have to renegotiate a separate contract with PRODUCER B because both were named collectively as the PURCHASER?
Answer: If Producer A has signed the contract, he cannot unilaterally withdraw. You are under no obligation to give him his money back. Assuming Producer B was a signatory of the contract, he is bound by it as well. You need to look at the terms of the contract to determine the respective rights of the parties.
Question: Where on the Internet might I find a sample non-disclosure form or contract. I have written a teleplay and treatment and want to cover myself legally when I submit it to interested parties. Also, what else do I need?
Answer: If the interested parties are producers or studio executives, not only will they refuse to sign your nondisclosure agreement, they will probably insist that you sign a submission release instead. There are copies of these documents in my book Contracts for the Film and Television Industry, 2nd Ed., Silman-James Press.
Frequently Asked Questions: Releases
Answers from Mark Litwak, Attorney At Law
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.
Question: If a person is writing a screenplay about an event in history, does a person need a release from every living person in order to use his or her name in a story?
Answer: Not necessarily. Unauthorized biographies and films are produced and protected under the First Amendment guarantee of free speech. If the subject is a public figure or public official, you won't be liable for defamation unless you recklessly publish defamatory matter. You will also need to make sure not to reveal any intimate details of subjects' lives that would be considered an invasion of privacy, or borrow more material than allowed as a fair use of any copyrighted material. If you are writing about a private individual, you must be more careful. Prior to production you should submit your screenplay for review by an experienced entertainment attorney to spot any problems. Often potential liability can be avoided by changing character names, locations and adding disclaimers.
Question: When making reference to cars, products (i.e., Toy Story), songs, etc. in your spec script, do you need to obtain the legal rights first?
Answer: You don't need permission to have a character merely mention a product in your script. It is good practice, however, for the producer to obtain a release before that product will be depicted in the film if the product is identifiable to the viewer. If the product is shown in a derogatory light, or if the producer implies that the film is endorsed or produced by the product manufacturer, there could be liability. However, merely showing a product in a film may not violate the rights of the product manufacturer. Likewise, if a character mentions a product name, there may not be any liability. Before you go into production on your script, it is good idea to have an attorney clear it, and look for any potential legal problems. There are often inexpensive ways to avoid liability by adding disclaimers, and slightly rewriting the script so no real live individuals are identifiable. As to products, if there is a problem, you can create a pseudo-product. See my article on movie merchandising for more info: http://www.marklitwak.com/movmerc.html
Question: I am about to attempt to interview for a true story. Problem is, my interview subject is in jail (found guilty for second degree murder). If I am able to get an interview with her, will I need rights to write about her? I've been told that I do not need one. Her sister and brother-in-law are also involved and I'd like to use their characters in the story. Will I need one from them? All other characters I can portray without their true identities. Do you have suggestions on how I might approach getting this interview and if so, what legal ramifications I may face? Can I write a portion of the TV movie from court transcripts and/or newspaper articles without worry?
Answer: Generally speaking, journalists can write about other people without getting any kind of release. You can be sure Mike Wallace on "60 Minutes" and reporters for the New York Times criticize individuals without getting their permission. This is a right that you have under the First Amendment. However, one's freedom of expression is limited in certain realms. You cannot invade another's privacy or defame another and claim the First Amendment as a defense. If this individual is a private individual, not a public figure or public official, you can be liable if you are negligent in publishing something about them that is defamatory or invades their privacy. Therefore, while it is often not required, it is not a bad idea to get a release from the subject that you are interviewing. The release would protect you from any claim based on defamation, invasion of privacy, right of publicity and may in addition grant you certain rights to confidential information like diaries or other information that is otherwise not available to the public. Moreover, obtaining life story rights of the subject might strengthen your bargaining position if you are attempting to use these rights to secure a network television deal. If you fictionalize characters and their identity cannot be determined from the circumstances, then you may not need a release.
Question: Is there an online source for standard legal forms used in the entertainment industry? Specifically, I've been asked to send a standard release (long form) with my script submission. Where can I find such a form?
Answer: I don't know of an online source for entertainment industry contracts. A submission release can be found in my book, Contracts for the Film & Television Industry, published by Silman-James Press. Typically, companies that are willing to accept submissions after a release is signed and they will supply the release.
Question: (1) Someone "gave" me the idea for a screenplay. (I didn't "steal" it—he knows I write screenplays, and he specifically suggested the idea to me as the basis for a screenplay.) If I were to sell a screenplay based on his idea, what is the usual industry standard for what percentage I would pay him for using his idea as the basis for my screenplay? (2) Someone else I know has been trying unsuccessfully to sell a novel he wrote. We have discussed the idea of my trying to turn his story into a screenplay, but he wants to know how we would split the proceeds if it is sold. What is the usual industry standard for splitting the money with the author when a screenplay is adapted from his unsold novel?
Answer: Generally speaking, ideas are as free as the air. You cannot copyright an idea, although clearly ideas can have value. There is no usual industry percentage for the purchase of ideas, since ideas are not bought and traded like a commodity. From the point of view of distributors and studios, an idea is only as valuable as the team that is going to implement it. Steven Spielberg can set up a mediocre idea with a major studio for big bucks, while a fledgling screenwriter with a better idea may have trouble selling it at any price. What is valued in Hollywood is the ability to create a great script or movie, not think-up an idea for one. The most valuable ideas come from people with a proven track record of turning their ideas into successful movies.
As for adapting a novel into a screenplay, it is customary for the screenwriter or producer to take an option on the novel. Assuming this is a relatively unknown work that has been out awhile and no one has sought to turn it into a movie, I would offer the novelist a one year option for $1,000 with one or more rights of renewal for $1,000 each, against a purchase price of $50,000 if it gets made as a television movie, and $100,000 if it gets made as a feature film. After you take the option, you will need to try to set up the finished screenplay with a producer or distributor. The quality and demand for the screenplay will determine what kind of price you can obtain for it. There are other ways you can structure a deal with this novelist. You can agree to split the proceeds from any sale of the screenplay.
Question: I am interested in selling a television show idea and I was wondering what steps I should take to pitch this idea.
Answer: Generally, ideas are not worth a great deal standing alone. There is no market per se for ideas. Steven Spielberg can probably sell a fairly mediocre idea very quickly if he is attached as the writer, director, or producer. On the other hand, your idea could be ten times better, but no one may want to even listen because you don't have Spielberg's track record.
Question: I read an article that talked about the importance of getting permission for the use of items that appear in films. I've heard of product placement but I didn't know it worked the other way around. If characters in a film are all sitting around drinking Budweiser do we have to get Anheuser-Busch's permission to use the bottles? What if stuff just appears in the background, like someone loading up their shopping cart with Cheerios and Pepsi? Do we need releases for that too?
Answer: You don't need to bother with releases if the products are shown fleetingly in the background. But if the products are featured on screen, it is good practice to get a release or have your art dept create a pseudo-product. That being said, it is doubtful whether a manufacturer would have a valid case against a filmmaker simply because the product was shown on screen in a non-derogatory manner. On the other hand, if you show a character drinking a Pepsi and then he falls on the floor sick, you may have disparaged the product and could be liable. Also, if you use the product in a manner that suggests the manufacturer has sponsored or endorsed your film, you can be liable for unfair competition. Keep in mind that many manufacturers are anxious to have their products in films, and they may well give you permission and a bunch of freebies as well.
Question: A few friends and I have recently graduated from law school and are interested in marketing a documentary. We shot this documentary in Daytona last year during Bike Week and think it has some commercial value. I understand that if we loop the footage to music we need to gain the performance rights, but what about releases from individuals on tape? Much of the documentary has close-ups of people who may or may not wanted to be in the film. Naturally, some performed rather unflattering things in retrospect. Is there any invasion of privacy issues here? Everything was taped outside, in public.
Answer: Generally speaking, anything one does in public is fair game in regards to other people photographing it or observing it. You waive your right of privacy when you publicly exhibit yourself to others. The documentary will probably be protected under the First Amendment even if some of the subjects are not happy with their portrayal. When Mike Wallace does a "60 Minutes" investigation, he does not obtain a release from the perpetrators of a scam. However, if you want to use the names or likenesses of people on products or merchandise, or in an entertainment program, you should secure releases.
Question: I am developing a movie script that centers on a company in L.A. during the mid-'60s. This company is still in operation today; however, it is their past that is of interest to me. How do I obtain the movie rights concerning this company? I've been told I have to "buy the rights." I would appreciate your help on this matter.
Answer: You have a First Amendment right to write and make a film about other people or companies without their permission as long as you don't invade their rights of privacy or defame them. When producers buy life story rights from an individual, often what they are buying is their cooperation and their willingness to disclose to the producer information that is not otherwise publicly available. If the movie is going to portray this company in a disparaging manner, then such a release, which would include a waiver of any right to sue you for disparagement is important. Otherwise, you may not need their permission. "60 Minutes" does not need permission of its subjects when it does an expose. But you can be sure that they are careful in documenting that they are presenting the truth. Truth, by the way, is an absolute defense to defamation.
Question: In our screenplay, there is a scene in which a newscaster states that "the ACLU and the National Gay Alliance have released information about a (fictional terrorist organization) ... etc." Do we need permission from each of these organizations to use their names in this context? We would appreciate your comments.
Answer: It is difficult to answer this question without knowing the context in which these organizations are mentioned. Under the First Amendment, you are generally protected in talking about other people and organizations. However, you can be liable for defamation if you defame another and injure their reputation. There are certain defenses to defamation, however, such as truth. After you finish your screenplay, you should have it reviewed by an experienced entertainment attorney to determine if there is any potential liability.
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.
Question: If a person is writing a screenplay about an event in history, does a person need a release from every living person in order to use his or her name in a story?
Answer: Not necessarily. Unauthorized biographies and films are produced and protected under the First Amendment guarantee of free speech. If the subject is a public figure or public official, you won't be liable for defamation unless you recklessly publish defamatory matter. You will also need to make sure not to reveal any intimate details of subjects' lives that would be considered an invasion of privacy, or borrow more material than allowed as a fair use of any copyrighted material. If you are writing about a private individual, you must be more careful. Prior to production you should submit your screenplay for review by an experienced entertainment attorney to spot any problems. Often potential liability can be avoided by changing character names, locations and adding disclaimers.
Question: When making reference to cars, products (i.e., Toy Story), songs, etc. in your spec script, do you need to obtain the legal rights first?
Answer: You don't need permission to have a character merely mention a product in your script. It is good practice, however, for the producer to obtain a release before that product will be depicted in the film if the product is identifiable to the viewer. If the product is shown in a derogatory light, or if the producer implies that the film is endorsed or produced by the product manufacturer, there could be liability. However, merely showing a product in a film may not violate the rights of the product manufacturer. Likewise, if a character mentions a product name, there may not be any liability. Before you go into production on your script, it is good idea to have an attorney clear it, and look for any potential legal problems. There are often inexpensive ways to avoid liability by adding disclaimers, and slightly rewriting the script so no real live individuals are identifiable. As to products, if there is a problem, you can create a pseudo-product. See my article on movie merchandising for more info: http://www.marklitwak.com/movmerc.html
Question: I am about to attempt to interview for a true story. Problem is, my interview subject is in jail (found guilty for second degree murder). If I am able to get an interview with her, will I need rights to write about her? I've been told that I do not need one. Her sister and brother-in-law are also involved and I'd like to use their characters in the story. Will I need one from them? All other characters I can portray without their true identities. Do you have suggestions on how I might approach getting this interview and if so, what legal ramifications I may face? Can I write a portion of the TV movie from court transcripts and/or newspaper articles without worry?
Answer: Generally speaking, journalists can write about other people without getting any kind of release. You can be sure Mike Wallace on "60 Minutes" and reporters for the New York Times criticize individuals without getting their permission. This is a right that you have under the First Amendment. However, one's freedom of expression is limited in certain realms. You cannot invade another's privacy or defame another and claim the First Amendment as a defense. If this individual is a private individual, not a public figure or public official, you can be liable if you are negligent in publishing something about them that is defamatory or invades their privacy. Therefore, while it is often not required, it is not a bad idea to get a release from the subject that you are interviewing. The release would protect you from any claim based on defamation, invasion of privacy, right of publicity and may in addition grant you certain rights to confidential information like diaries or other information that is otherwise not available to the public. Moreover, obtaining life story rights of the subject might strengthen your bargaining position if you are attempting to use these rights to secure a network television deal. If you fictionalize characters and their identity cannot be determined from the circumstances, then you may not need a release.
Question: Is there an online source for standard legal forms used in the entertainment industry? Specifically, I've been asked to send a standard release (long form) with my script submission. Where can I find such a form?
Answer: I don't know of an online source for entertainment industry contracts. A submission release can be found in my book, Contracts for the Film & Television Industry, published by Silman-James Press. Typically, companies that are willing to accept submissions after a release is signed and they will supply the release.
Question: (1) Someone "gave" me the idea for a screenplay. (I didn't "steal" it—he knows I write screenplays, and he specifically suggested the idea to me as the basis for a screenplay.) If I were to sell a screenplay based on his idea, what is the usual industry standard for what percentage I would pay him for using his idea as the basis for my screenplay? (2) Someone else I know has been trying unsuccessfully to sell a novel he wrote. We have discussed the idea of my trying to turn his story into a screenplay, but he wants to know how we would split the proceeds if it is sold. What is the usual industry standard for splitting the money with the author when a screenplay is adapted from his unsold novel?
Answer: Generally speaking, ideas are as free as the air. You cannot copyright an idea, although clearly ideas can have value. There is no usual industry percentage for the purchase of ideas, since ideas are not bought and traded like a commodity. From the point of view of distributors and studios, an idea is only as valuable as the team that is going to implement it. Steven Spielberg can set up a mediocre idea with a major studio for big bucks, while a fledgling screenwriter with a better idea may have trouble selling it at any price. What is valued in Hollywood is the ability to create a great script or movie, not think-up an idea for one. The most valuable ideas come from people with a proven track record of turning their ideas into successful movies.
As for adapting a novel into a screenplay, it is customary for the screenwriter or producer to take an option on the novel. Assuming this is a relatively unknown work that has been out awhile and no one has sought to turn it into a movie, I would offer the novelist a one year option for $1,000 with one or more rights of renewal for $1,000 each, against a purchase price of $50,000 if it gets made as a television movie, and $100,000 if it gets made as a feature film. After you take the option, you will need to try to set up the finished screenplay with a producer or distributor. The quality and demand for the screenplay will determine what kind of price you can obtain for it. There are other ways you can structure a deal with this novelist. You can agree to split the proceeds from any sale of the screenplay.
Question: I am interested in selling a television show idea and I was wondering what steps I should take to pitch this idea.
Answer: Generally, ideas are not worth a great deal standing alone. There is no market per se for ideas. Steven Spielberg can probably sell a fairly mediocre idea very quickly if he is attached as the writer, director, or producer. On the other hand, your idea could be ten times better, but no one may want to even listen because you don't have Spielberg's track record.
Question: I read an article that talked about the importance of getting permission for the use of items that appear in films. I've heard of product placement but I didn't know it worked the other way around. If characters in a film are all sitting around drinking Budweiser do we have to get Anheuser-Busch's permission to use the bottles? What if stuff just appears in the background, like someone loading up their shopping cart with Cheerios and Pepsi? Do we need releases for that too?
Answer: You don't need to bother with releases if the products are shown fleetingly in the background. But if the products are featured on screen, it is good practice to get a release or have your art dept create a pseudo-product. That being said, it is doubtful whether a manufacturer would have a valid case against a filmmaker simply because the product was shown on screen in a non-derogatory manner. On the other hand, if you show a character drinking a Pepsi and then he falls on the floor sick, you may have disparaged the product and could be liable. Also, if you use the product in a manner that suggests the manufacturer has sponsored or endorsed your film, you can be liable for unfair competition. Keep in mind that many manufacturers are anxious to have their products in films, and they may well give you permission and a bunch of freebies as well.
Question: A few friends and I have recently graduated from law school and are interested in marketing a documentary. We shot this documentary in Daytona last year during Bike Week and think it has some commercial value. I understand that if we loop the footage to music we need to gain the performance rights, but what about releases from individuals on tape? Much of the documentary has close-ups of people who may or may not wanted to be in the film. Naturally, some performed rather unflattering things in retrospect. Is there any invasion of privacy issues here? Everything was taped outside, in public.
Answer: Generally speaking, anything one does in public is fair game in regards to other people photographing it or observing it. You waive your right of privacy when you publicly exhibit yourself to others. The documentary will probably be protected under the First Amendment even if some of the subjects are not happy with their portrayal. When Mike Wallace does a "60 Minutes" investigation, he does not obtain a release from the perpetrators of a scam. However, if you want to use the names or likenesses of people on products or merchandise, or in an entertainment program, you should secure releases.
Question: I am developing a movie script that centers on a company in L.A. during the mid-'60s. This company is still in operation today; however, it is their past that is of interest to me. How do I obtain the movie rights concerning this company? I've been told I have to "buy the rights." I would appreciate your help on this matter.
Answer: You have a First Amendment right to write and make a film about other people or companies without their permission as long as you don't invade their rights of privacy or defame them. When producers buy life story rights from an individual, often what they are buying is their cooperation and their willingness to disclose to the producer information that is not otherwise publicly available. If the movie is going to portray this company in a disparaging manner, then such a release, which would include a waiver of any right to sue you for disparagement is important. Otherwise, you may not need their permission. "60 Minutes" does not need permission of its subjects when it does an expose. But you can be sure that they are careful in documenting that they are presenting the truth. Truth, by the way, is an absolute defense to defamation.
Question: In our screenplay, there is a scene in which a newscaster states that "the ACLU and the National Gay Alliance have released information about a (fictional terrorist organization) ... etc." Do we need permission from each of these organizations to use their names in this context? We would appreciate your comments.
Answer: It is difficult to answer this question without knowing the context in which these organizations are mentioned. Under the First Amendment, you are generally protected in talking about other people and organizations. However, you can be liable for defamation if you defame another and injure their reputation. There are certain defenses to defamation, however, such as truth. After you finish your screenplay, you should have it reviewed by an experienced entertainment attorney to determine if there is any potential liability.
Frequently Asked Questions: Producing
Answers from Mark Litwak, Attorney At Law
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.
Question: I am writing a paper on producing a film for my entertainment and sports law class. I was hoping that you would give some pointers on how I may go about this. What does producing involve? Any information on financing, distribution, royalties, licensing, advertising—any help would greatly be appreciated.
Answer: There are mountains of information on all these topics. A recent book that has been published by Silman-James Press is called Movie Money. The book discusses creative accounting.
Question: What is the procedure for obtaining permission to produce a motion picture based on a novel that is currently out of print and the author is deceased?
Answer: It doesn't matter whether an author is dead or a book is out of print. You need to determine if the book is copyrighted or in the public domain. If copyrighted, you need to locate the owner(s) and license the rights to adapt it. If it is in the public domain, you don't need anyone's permission.
Question: My partner and I have been at the negotiation table trying to form a joint venture with a pop music group that also has their own production company. To the table we bring our product (13 episodes for the first season of our show), and they bring their connections and exposure to set up meetings with companies that we want to sell the show too.
What we are trying to do is sell the series to a brand name corporation, so they may use it as a form of indirect advertising (this deal would be in Malaysia) and the pop music groups production company would get to produce the series. As it stands, I've offered them 50-50 split of the profit sharing (before production costs) and the rights would stay with the creators. They want 50-50 profit sharing after production costs have been covered and they want joint rights. I think their requests are unreasonable, being that all we are asking from them is to set up meetings ... we've already created and developed the show.
Could you please help me to understand where the rights lie and if you were in my shoes what kind of other items would you make sure were covered within the contract.
Answer: It is not clear from the question whether you have produced, or intend to produce, 13 episodes, and whether the territory for the deal is Malaysia or a broader market. If you are just licensing a concept, then the other party is going to incur all the production costs. In this situation, joint rights and a fifty-fifty profit sharing is reasonable. On the other hand, if you are producing the show and simply licensing it to them for broadcast in Malaysia, you should just give them distribution rights for Malaysia. You would not give them a piece of the copyright of the underlying show. Typically in licensing deals for the smaller territories like Malaysia, the licensee pays a flat fee in return for the right to broadcast a show a certain number of times within a designated time period.
Question: If an assistant to a producer develops a project that gets green lit and turned into a motion picture and television show (including merchandising and ancillary markets), is there a standard and customary percentage (gross or of the producer's fees) that should be negotiated for this individual as well as a credit? Or is there no legal binder to any obligation? Thank you.
Answer: An assistant to a producer is probably an employee, and other than whatever salary the employee is entitled to, he would not have any interest in projects developed for the producer. Of course, if your agreement with the producer promises otherwise, then you need to look to those terms. As for a producer credit, that could range from anything that is merely honorary to a credit that represents what you actually did on the production. Notwithstanding all of the forgoing, if your job working for the producer does not involve developing projects, (i.e., this project was outside the scope of your employment), then you should be treated no differently than any outsider who has submitted a project to this producer.
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.
Question: I am writing a paper on producing a film for my entertainment and sports law class. I was hoping that you would give some pointers on how I may go about this. What does producing involve? Any information on financing, distribution, royalties, licensing, advertising—any help would greatly be appreciated.
Answer: There are mountains of information on all these topics. A recent book that has been published by Silman-James Press is called Movie Money. The book discusses creative accounting.
Question: What is the procedure for obtaining permission to produce a motion picture based on a novel that is currently out of print and the author is deceased?
Answer: It doesn't matter whether an author is dead or a book is out of print. You need to determine if the book is copyrighted or in the public domain. If copyrighted, you need to locate the owner(s) and license the rights to adapt it. If it is in the public domain, you don't need anyone's permission.
Question: My partner and I have been at the negotiation table trying to form a joint venture with a pop music group that also has their own production company. To the table we bring our product (13 episodes for the first season of our show), and they bring their connections and exposure to set up meetings with companies that we want to sell the show too.
What we are trying to do is sell the series to a brand name corporation, so they may use it as a form of indirect advertising (this deal would be in Malaysia) and the pop music groups production company would get to produce the series. As it stands, I've offered them 50-50 split of the profit sharing (before production costs) and the rights would stay with the creators. They want 50-50 profit sharing after production costs have been covered and they want joint rights. I think their requests are unreasonable, being that all we are asking from them is to set up meetings ... we've already created and developed the show.
Could you please help me to understand where the rights lie and if you were in my shoes what kind of other items would you make sure were covered within the contract.
Answer: It is not clear from the question whether you have produced, or intend to produce, 13 episodes, and whether the territory for the deal is Malaysia or a broader market. If you are just licensing a concept, then the other party is going to incur all the production costs. In this situation, joint rights and a fifty-fifty profit sharing is reasonable. On the other hand, if you are producing the show and simply licensing it to them for broadcast in Malaysia, you should just give them distribution rights for Malaysia. You would not give them a piece of the copyright of the underlying show. Typically in licensing deals for the smaller territories like Malaysia, the licensee pays a flat fee in return for the right to broadcast a show a certain number of times within a designated time period.
Question: If an assistant to a producer develops a project that gets green lit and turned into a motion picture and television show (including merchandising and ancillary markets), is there a standard and customary percentage (gross or of the producer's fees) that should be negotiated for this individual as well as a credit? Or is there no legal binder to any obligation? Thank you.
Answer: An assistant to a producer is probably an employee, and other than whatever salary the employee is entitled to, he would not have any interest in projects developed for the producer. Of course, if your agreement with the producer promises otherwise, then you need to look to those terms. As for a producer credit, that could range from anything that is merely honorary to a credit that represents what you actually did on the production. Notwithstanding all of the forgoing, if your job working for the producer does not involve developing projects, (i.e., this project was outside the scope of your employment), then you should be treated no differently than any outsider who has submitted a project to this producer.
Frequently Asked Questions: Music
Answers from Mark Litwak, Attorney At Law
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.
Question: Do I need copyright clearance and permission for music soundtrack if I am using it on an independent film for festivals only? If so, who/where do I contact?
Answer: Yes, you do need permission. There is no exemption in copyright law for film festivals. Many music rights holders, however, are willing to give a limited license for such use for free or a nominal fee. It is best to negotiate a step deal where you pay according to how extensive your distribution is. This might entail a payment of $500 for the right to use the music in a film for festivals, and larger sums paid for a theatrical release, television broadcast, etc.
Question: I am currently trying to license two songs for a short film. The two songs are quite well known and my budget is limited. What is the best way to obtain licenses for music under these circumstances?
Answer: Beg. If you know the musicians personally, that may help. Try to interest them in your project. Even if you can't pay them much of a fee up-front, they will receive fees from public performing agencies when the film is televised and shown in theaters abroad. If the film is a hit, they may also benefit from the publicity.
Question: I am a female singer, songwriter, and musician of R&B, Soul, Contemporary Jazz-Funk and Pop music. I want to write music for featured films. Can you tell me whom I would need to contact for film productions?
Answer: You should probably focus on contacting filmmakers and directors, since these are the people who often determine who is to be hired to compose soundtracks. Many low-budget filmmakers are looking for music and with modern technology, you can often compose some pretty amazing music for little or no money. Perhaps you want to join the Independent Feature Project (on the Web at http://www.ifp.org) and offer your services to fledgling filmmakers.
Question: I'm a composer in Washington DC. I've been scoring documentaries and commercials for about three years, and although I have been an ASCAP writer-member for a year, I never got a chance to deal with royalties until now because every time it was a simple "complete buyout." National Geographic, who I haven't worked with before, may now ask me to score some of their TV projects. They say it's good that I'm an ASCAP writer, but I have no idea what I need to do regarding the royalty procedures if I get the project. Could you please describe briefly what kinds of papers I may be expected to sign there, where I'll have to send what, and, possibly, how I should go about charging them for the job?
Answer: ASCAP, BMI or agencies representing people who own music rights, may license public performance rights. You can call ASCAP, or BMI, and they will send you a package of information that explains what they do and how you can retain them as your agent. You can find ASCAP online at http://www.ascap.com. BMI's website is http://www.bmi.com). Essentially these agencies provide an administrative service. They collect fees for the right to publicly perform music from nightclubs, radio and television stations, and other outlets that publicly perform music. If a disc jockey had to individually license the rights to publicly broadcast a song before playing it on the radio, the burden would be horrendous. By contracting with ASCAP or BMI, the radio station can license a whole catalog of music and pay a royalty to the agency. ASCAP or BMI collects money from radio and T.V. stations and nightclubs across the country, deducts its administrative costs, and then divides the money up among its members. The money is divided up in proportion to the popularity of the songs. ASCAP does surveys to determine which songs are played more than others.
Question: I am just starting out in the music business. I have been dubbed the new scout/representative of an independent record company here in Germany. It is run by Americans entirely and we are looking for unknowns to come on to our record label. We focus on R&B and Rap. I officially joined the company on the 31st of May, plus they like the way I operate. Can you refer me to a good source of strictly music law information? I notice that you deal with screen law mainly. I need to know my P's and Q's if I want to be the best in this company.
Answer: To learn the basics of music law, I would recommend the book, Music, Money and Success by Jeffrey Brabec and Todd Brabec, published by Schirmer Books. This will explain the basics to you.
Question: I am involved in a community theatre and we are trying to write our own Christmas show. Our problem is that we would like to use songs that other people have written. How do we go about finding out who holds the copyright or license for old Christmas tunes? Is there any easy way to do this? We have over 50 songs to find information about. Any help would be greatly appreciated.
Answer: Probably the easiest way to determine ownership rights in a particular song is to contact the music publisher for that song. If you have a copy of the song in the form of a record or CD, the label should list either the recording company, or the publisher, or both. You could also hire a clip clearance agency to help you clear these songs. Here are two: Copyright Clearance Center at http://www.copyright.com and Suzy Vaughan Associates, Inc. at http://www.suzyesq.com.
Question: I have written my screenplay with some well-known artists/tracks. The artist is indicated, followed by the song title. Then, I have some of their lyrics with my action line description line-for-line. If I were to submit this screenplay for sale consideration am I violating copyright laws? Is there a legal way I can indicate recommended artist soundtracks/lyrics within the script?
Answer: Any substantial copying of a copyrighted work (such as a song) is technically copyright infringement. Certainly, a song cannot be used in a movie without a license. It is not copyright infringement to suggest the use of a song as a soundtrack component in a motion picture. Even a small amount of verbatim quotes from the song might be permissible under the fair use doctrine. From a practical point of view, unless the screenplay is turned into a motion picture, it is unlikely a claim for copyright infringement will ever be raised.
Question: Supposing that an agency wants to use a famous song in a commercial, yet the artist is "anti-commercial." Is it possible for the agency to write its own song using a soundalike and still technically avoid law violations by using soundalikes to imply an endorsement by a well-known star?
Answer: You may want to review the Bette Midler case (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)) and the Tom Waits case (Waits v. Frito-Lay, 978 F.2d 1093 (9th Cir. 1992)) in this regard. The soundalike might violate laws of unfair competition and rights of publicity—even if technically it's not copyright infringement.
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.
Question: Do I need copyright clearance and permission for music soundtrack if I am using it on an independent film for festivals only? If so, who/where do I contact?
Answer: Yes, you do need permission. There is no exemption in copyright law for film festivals. Many music rights holders, however, are willing to give a limited license for such use for free or a nominal fee. It is best to negotiate a step deal where you pay according to how extensive your distribution is. This might entail a payment of $500 for the right to use the music in a film for festivals, and larger sums paid for a theatrical release, television broadcast, etc.
Question: I am currently trying to license two songs for a short film. The two songs are quite well known and my budget is limited. What is the best way to obtain licenses for music under these circumstances?
Answer: Beg. If you know the musicians personally, that may help. Try to interest them in your project. Even if you can't pay them much of a fee up-front, they will receive fees from public performing agencies when the film is televised and shown in theaters abroad. If the film is a hit, they may also benefit from the publicity.
Question: I am a female singer, songwriter, and musician of R&B, Soul, Contemporary Jazz-Funk and Pop music. I want to write music for featured films. Can you tell me whom I would need to contact for film productions?
Answer: You should probably focus on contacting filmmakers and directors, since these are the people who often determine who is to be hired to compose soundtracks. Many low-budget filmmakers are looking for music and with modern technology, you can often compose some pretty amazing music for little or no money. Perhaps you want to join the Independent Feature Project (on the Web at http://www.ifp.org) and offer your services to fledgling filmmakers.
Question: I'm a composer in Washington DC. I've been scoring documentaries and commercials for about three years, and although I have been an ASCAP writer-member for a year, I never got a chance to deal with royalties until now because every time it was a simple "complete buyout." National Geographic, who I haven't worked with before, may now ask me to score some of their TV projects. They say it's good that I'm an ASCAP writer, but I have no idea what I need to do regarding the royalty procedures if I get the project. Could you please describe briefly what kinds of papers I may be expected to sign there, where I'll have to send what, and, possibly, how I should go about charging them for the job?
Answer: ASCAP, BMI or agencies representing people who own music rights, may license public performance rights. You can call ASCAP, or BMI, and they will send you a package of information that explains what they do and how you can retain them as your agent. You can find ASCAP online at http://www.ascap.com. BMI's website is http://www.bmi.com). Essentially these agencies provide an administrative service. They collect fees for the right to publicly perform music from nightclubs, radio and television stations, and other outlets that publicly perform music. If a disc jockey had to individually license the rights to publicly broadcast a song before playing it on the radio, the burden would be horrendous. By contracting with ASCAP or BMI, the radio station can license a whole catalog of music and pay a royalty to the agency. ASCAP or BMI collects money from radio and T.V. stations and nightclubs across the country, deducts its administrative costs, and then divides the money up among its members. The money is divided up in proportion to the popularity of the songs. ASCAP does surveys to determine which songs are played more than others.
Question: I am just starting out in the music business. I have been dubbed the new scout/representative of an independent record company here in Germany. It is run by Americans entirely and we are looking for unknowns to come on to our record label. We focus on R&B and Rap. I officially joined the company on the 31st of May, plus they like the way I operate. Can you refer me to a good source of strictly music law information? I notice that you deal with screen law mainly. I need to know my P's and Q's if I want to be the best in this company.
Answer: To learn the basics of music law, I would recommend the book, Music, Money and Success by Jeffrey Brabec and Todd Brabec, published by Schirmer Books. This will explain the basics to you.
Question: I am involved in a community theatre and we are trying to write our own Christmas show. Our problem is that we would like to use songs that other people have written. How do we go about finding out who holds the copyright or license for old Christmas tunes? Is there any easy way to do this? We have over 50 songs to find information about. Any help would be greatly appreciated.
Answer: Probably the easiest way to determine ownership rights in a particular song is to contact the music publisher for that song. If you have a copy of the song in the form of a record or CD, the label should list either the recording company, or the publisher, or both. You could also hire a clip clearance agency to help you clear these songs. Here are two: Copyright Clearance Center at http://www.copyright.com and Suzy Vaughan Associates, Inc. at http://www.suzyesq.com.
Question: I have written my screenplay with some well-known artists/tracks. The artist is indicated, followed by the song title. Then, I have some of their lyrics with my action line description line-for-line. If I were to submit this screenplay for sale consideration am I violating copyright laws? Is there a legal way I can indicate recommended artist soundtracks/lyrics within the script?
Answer: Any substantial copying of a copyrighted work (such as a song) is technically copyright infringement. Certainly, a song cannot be used in a movie without a license. It is not copyright infringement to suggest the use of a song as a soundtrack component in a motion picture. Even a small amount of verbatim quotes from the song might be permissible under the fair use doctrine. From a practical point of view, unless the screenplay is turned into a motion picture, it is unlikely a claim for copyright infringement will ever be raised.
Question: Supposing that an agency wants to use a famous song in a commercial, yet the artist is "anti-commercial." Is it possible for the agency to write its own song using a soundalike and still technically avoid law violations by using soundalikes to imply an endorsement by a well-known star?
Answer: You may want to review the Bette Midler case (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)) and the Tom Waits case (Waits v. Frito-Lay, 978 F.2d 1093 (9th Cir. 1992)) in this regard. The soundalike might violate laws of unfair competition and rights of publicity—even if technically it's not copyright infringement.
Frequently Asked Questions: Life Story Rights
Answers from Mark Litwak, Attorney At Law
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.
Question: Our client has a story to tell and there has been some interest expressed and indeed an actual offer to purchase movie rights to his story. How can I find out what constitutes a typical arrangement for the sale of movie rights to someone's "true life story"? I need to know more about what is and is not acceptable in the negotiation process, where I can find sample contracts, etc.
Answer: There is a discussion of this topic in my book, Dealmaking in the Film & Television Industry, which discusses life story rights and has some sample contracts. The price for life story rights varies depending on the appeal of the story. For a TV network broadcast movie, it might be $50,000 to several hundred thousand dollars. For feature films, it could be two times or more that amount. If the subject is famous, the figure could be considerably higher. On the other hand, some movies are made about subjects without their permission or authorization. Under the first amendment, one is generally free to write about other people (e.g., an unauthorized biography) without their permission. This also applies to filmmakers.
Question: I've recently written a biographical script about a famous person who recently died. As I understand it I can use his life story without permission because his death means he has no civil rights. But what about the rights of the other people portrayed in my script? Do I need to get their permission before I can proceed or, as long as what I portray is public information (the script is based on a number of books and newspaper articles), do I not need their permission at all?
Answer: The rights of privacy and the right to protect one's reputation are considered personal rights and they expire when the person dies. However, other people that you may want to portray that are alive might be able to sue for invasion of privacy or defamation should you violate their rights. Some of these other characters you might be able to fictionalize, and if they are not identifiable, they might have difficulty proving they had been damaged. A disclaimer that the story is fictional may also give you some protection. Some rights, such as the right of publicity, which may be needed if any merchandising spin-offs are planned, do not expire on death. State law varies on this issue.
Question: What are the legal issues pertaining to writing a screenplay based on someone's life story? What rights need to be secured, etc.? Is it advisable to engage an attorney prior to any discussion about securing rights?
Answer: This is a difficult question to answer because the rights you need to obtain depend upon how much of the life story is in the public domain, and whether the subject of the life story is alive or dead. Moreover, if you fictionalize a story you may be able to avoid buying life story rights. Generally speaking, if you make a movie about someone, you are protected on the First Amendment and do not need a release. However, if you invade their privacy, hurt their reputation, want access to any confidential information that is not publicly available, or infringe upon their right of publicity, you could potentially be sued. Life story rights encompass a release for these causes of action. My book, Dealmaking in the Film and Television Industry, speaks at length about the issues involved in obtaining life story rights and when you need to purchase such rights.
Question: I am currently researching a true story that took place in the '20s. If everyone portrayed in the property is dead, do I need to obtain releases from the deceased's relatives? If a person's estate has been registered with the Secretary of State in California, can I write a true story since it falls more on the information side and less on the commercial side of the spectrum?
Answer: There are many fewer potential legal problems in depicting individuals who are deceased than those who are alive. That is because the rights to sue for defamation, which is harm to one's reputation, and for invasion of privacy, are considered personal rights and they do not descend to one's heirs. Thus, there is less reason to get permission from the heirs.
However, if you want to use the deceased person's name or likeness on merchandising, this is a right that may descend depending upon which state laws apply. Moreover, if you want the estate's cooperation so that it will provide you certain information that's not otherwise publicly available, like diaries, then you have another reason to make a deal with the heirs. See Section 990 of the Civil Code of California for more details on the right of publicity in California in regard to deceased individuals.
Question: Thanks for your continuing insight. My question deals with copyright and "optioning." The main character in a screenplay I'm working on is deceased (as is his wife—the other main character). Many non-fiction books have been written about him (some containing his actual diaries). What information about him—contained within these books—can be considered "historical fact," and therefore exempt from copyright infringement claims? I'm especially curious about the diaries.
Also—one of the books was written by another important character in the screenplay—still living. Should I contact her about "optioning" the motion picture rights to her book (again—non-fiction) or "optioning" the motion picture rights to her story? One more item—when researching this subject, if I interview people about him—do I need to ask them to sign a release of any kind? As you can tell—I'm new to this, and a bit confused. Thanks again. I look forward to reading your answer.
Answer: Historical facts are not copyrightable whether they are incorporated in someone else's work or not. What copyright law protects is the expression of an author - the particular way that an author expresses himself. In other words, ten authors can write biographies about George Washington and each can retain control over their particular approach to the material and how they tell the story, but no one has any monopoly over the underlying facts.
Life story rights, on the other hand, are a different matter. Essentially, the purchaser of life story rights is obtaining a release protecting the buyer of the rights from a suit predicated on defamation, invasion of privacy, right of publicity and sometimes the buyer is obtaining cooperation and access to information that he might not otherwise be able to obtain. When the subject of a life story is deceased, there's much less reason to option life story rights because the rights of defamation and invasion of privacy are personal and do not descend to one's heirs.
In regard to your question about releases from interview subjects, generally speaking, journalists do not need to get such a release unless they need to acquire life story rights or a depiction release. However, it never hurts to have a release, and if you can do so without cost, it's not a bad idea.
Question: I am interested in writing a screenplay based on a friend's life story. I am having some trouble getting him to sign over the rights. One condition is that he wants to remain anonymous. How does a studio know a story is based on real events if the subject wishes to remain anonymous? Are there any books that explain the process of obtaining life story rights? Secondly, must I obtain permission or rights from everyone I will use in the story, mainly his father and mother? Any information you could give me on this would be greatly appreciated.
Answer: The studio may not care whether or not the real name of the individual is used. It will probably depend upon whether his name will help attract an audience to the picture. For instance, a studio wanting to do the Amy Fisher story will want to use her real name because that is what will attract an audience. On the other hand, although the events in your friend's life are interesting, and the studio wants to say that it is based on a true story, his name may be not known to the public, and therefore the use of his name may not be important. As far as the studio knowing it is a true story—this can be disclosed to the studio even though it is not necessarily disclosed to the public. The character in the story can have a fictional name, and you could change the circumstances enough so that your friend will not be identifiable from the context.
There is a section in my book, Dealmaking in the Film & Television Industry, that covers the process of obtaining life story rights. These are usually obtained on an Option/Purchase basis or a grant with a reversion clause. As far as obtaining permission from other people in the film, this is not always required. Certainly, if they are minor characters and you fictionalize them, you can probably avoid purchasing their life story rights. It should also be noted that if the person has done something newsworthy, you might have a right under the First Amendment to depict them without a release.
Question: You've touched on the subject of writing someone's life story a few times, but I haven't seen this exact wrinkle addressed: I want to write a screenplay on an incident of the 1920's. All the characters are deceased, which makes things easier. I've been researching various biographies and news clippings, but my question comes specifically with the use of the diaries and letters of these historical figures. My interest in being historically accurate seems to conflict with copyright issues. If I use their phrases and quotes, I'm violating copyright, and if I use my words in their mouths, I'm sacrificing accuracy. Are diaries a special case? Are they more in the realm of 'historical fact'? As you can see, I'm confused. By the way, the diaries that I refer to are of two kinds: one is published (as memoirs) and the rest are unpublished (residing in various museums or libraries). I have a similar question with regard to personal letters. Your thoughts are appreciated.
Answer: Diaries are no different from other copyrightable matter. Copyright can attach to both published and unpublished works. Under the old copyright law in effect before 1976, if one chose to publish one's work, and did not include a copyright notice, then the copyright might be lost. Since the characters are deceased, you do not have to worry about being sued for invasion of privacy or defamation. In some states, the right of publicity descends to one's heirs. In other states, it does not. If it descends, you may encounter some problems as far as spinning off merchandise from a film. However, you would be protected under the First Amendment as far as making the film about real-life individuals without a release. Relying upon the content and information in the diaries would not be copyright infringement. Facts, historical incidents, ideas, themes, and names are not copyrightable. However, if you start extensively quoting from the diaries (assuming the diaries are still protected under copyright law), that could be an infringement of the copyright owner's rights. Copyright is descendible and the heirs to the copyright owner can inherit the copyright. Before 1976, a copyright would last for 28 years, and then could be renewed for an additional 28 years. When the law was changed, an additional period of 19 years was added. Thus, it is likely that any work created more than 75 years ago is now in the public domain. If the copyright was not renewed, then the copyright could have expired earlier. You will have to determine when the copyright came into existence.
Question: If I sell my story and later decide I want to write another story that includes one or more of the characters from my first story, would I have to negotiate into the contract the rights to do so? For example, I write a script, it is made into a movie and then five years later I decide to write another script, or maybe a book, which deals with one of the supporting characters from that first script. Would I have to have contracted at the time of sale to keep the rights to the characters?
ANSWER: If you reserved author written sequel rights, you may be able to use the characters in a subsequent work. You need to carefully review the language in your agreement to determine what your rights are.
If you sold the entire copyright to your script, then the new owner now has all rights to it, until such time as it goes into the public domain. Those rights include the use of the characters in the work to the extent that characters are copyrightable. Finely drawn characters, especially those with a visual component such as a comic book character, can be protected under copyright law. Likewise, characters with a name, such as "James Bond" might be protectable under the laws of unfair competition. But general character and personality traits, such as a "hard-boiled private eye," are not copyrightable, and freely available for all writers to use. There are dozens of hard-boiled private eye characters created by different authors. So even if your character is now owned by another, you could create a new and different character that might share some of the same personality characteristics of your prior character.
When writers create an original script on their own (i.e., not as a work for hire for another), they often are able to reserve certain rights to their scripts when they sell the motion picture rights. These reserved rights often include dramatic, radio, live television, print publication and author written sequel rights. Moreover, if you had a reversion clause in your purchase agreement, it might provide that if the buyer does not produce a movie based on your script within a certain time (i.e., five years), all rights revert to you. Finally, if a writer is a member of the Writers Guild, he/she may be entitled to certain "separated rights" by virtue of the collective bargaining agreement between the guild and its signatory companies.
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.
Question: Our client has a story to tell and there has been some interest expressed and indeed an actual offer to purchase movie rights to his story. How can I find out what constitutes a typical arrangement for the sale of movie rights to someone's "true life story"? I need to know more about what is and is not acceptable in the negotiation process, where I can find sample contracts, etc.
Answer: There is a discussion of this topic in my book, Dealmaking in the Film & Television Industry, which discusses life story rights and has some sample contracts. The price for life story rights varies depending on the appeal of the story. For a TV network broadcast movie, it might be $50,000 to several hundred thousand dollars. For feature films, it could be two times or more that amount. If the subject is famous, the figure could be considerably higher. On the other hand, some movies are made about subjects without their permission or authorization. Under the first amendment, one is generally free to write about other people (e.g., an unauthorized biography) without their permission. This also applies to filmmakers.
Question: I've recently written a biographical script about a famous person who recently died. As I understand it I can use his life story without permission because his death means he has no civil rights. But what about the rights of the other people portrayed in my script? Do I need to get their permission before I can proceed or, as long as what I portray is public information (the script is based on a number of books and newspaper articles), do I not need their permission at all?
Answer: The rights of privacy and the right to protect one's reputation are considered personal rights and they expire when the person dies. However, other people that you may want to portray that are alive might be able to sue for invasion of privacy or defamation should you violate their rights. Some of these other characters you might be able to fictionalize, and if they are not identifiable, they might have difficulty proving they had been damaged. A disclaimer that the story is fictional may also give you some protection. Some rights, such as the right of publicity, which may be needed if any merchandising spin-offs are planned, do not expire on death. State law varies on this issue.
Question: What are the legal issues pertaining to writing a screenplay based on someone's life story? What rights need to be secured, etc.? Is it advisable to engage an attorney prior to any discussion about securing rights?
Answer: This is a difficult question to answer because the rights you need to obtain depend upon how much of the life story is in the public domain, and whether the subject of the life story is alive or dead. Moreover, if you fictionalize a story you may be able to avoid buying life story rights. Generally speaking, if you make a movie about someone, you are protected on the First Amendment and do not need a release. However, if you invade their privacy, hurt their reputation, want access to any confidential information that is not publicly available, or infringe upon their right of publicity, you could potentially be sued. Life story rights encompass a release for these causes of action. My book, Dealmaking in the Film and Television Industry, speaks at length about the issues involved in obtaining life story rights and when you need to purchase such rights.
Question: I am currently researching a true story that took place in the '20s. If everyone portrayed in the property is dead, do I need to obtain releases from the deceased's relatives? If a person's estate has been registered with the Secretary of State in California, can I write a true story since it falls more on the information side and less on the commercial side of the spectrum?
Answer: There are many fewer potential legal problems in depicting individuals who are deceased than those who are alive. That is because the rights to sue for defamation, which is harm to one's reputation, and for invasion of privacy, are considered personal rights and they do not descend to one's heirs. Thus, there is less reason to get permission from the heirs.
However, if you want to use the deceased person's name or likeness on merchandising, this is a right that may descend depending upon which state laws apply. Moreover, if you want the estate's cooperation so that it will provide you certain information that's not otherwise publicly available, like diaries, then you have another reason to make a deal with the heirs. See Section 990 of the Civil Code of California for more details on the right of publicity in California in regard to deceased individuals.
Question: Thanks for your continuing insight. My question deals with copyright and "optioning." The main character in a screenplay I'm working on is deceased (as is his wife—the other main character). Many non-fiction books have been written about him (some containing his actual diaries). What information about him—contained within these books—can be considered "historical fact," and therefore exempt from copyright infringement claims? I'm especially curious about the diaries.
Also—one of the books was written by another important character in the screenplay—still living. Should I contact her about "optioning" the motion picture rights to her book (again—non-fiction) or "optioning" the motion picture rights to her story? One more item—when researching this subject, if I interview people about him—do I need to ask them to sign a release of any kind? As you can tell—I'm new to this, and a bit confused. Thanks again. I look forward to reading your answer.
Answer: Historical facts are not copyrightable whether they are incorporated in someone else's work or not. What copyright law protects is the expression of an author - the particular way that an author expresses himself. In other words, ten authors can write biographies about George Washington and each can retain control over their particular approach to the material and how they tell the story, but no one has any monopoly over the underlying facts.
Life story rights, on the other hand, are a different matter. Essentially, the purchaser of life story rights is obtaining a release protecting the buyer of the rights from a suit predicated on defamation, invasion of privacy, right of publicity and sometimes the buyer is obtaining cooperation and access to information that he might not otherwise be able to obtain. When the subject of a life story is deceased, there's much less reason to option life story rights because the rights of defamation and invasion of privacy are personal and do not descend to one's heirs.
In regard to your question about releases from interview subjects, generally speaking, journalists do not need to get such a release unless they need to acquire life story rights or a depiction release. However, it never hurts to have a release, and if you can do so without cost, it's not a bad idea.
Question: I am interested in writing a screenplay based on a friend's life story. I am having some trouble getting him to sign over the rights. One condition is that he wants to remain anonymous. How does a studio know a story is based on real events if the subject wishes to remain anonymous? Are there any books that explain the process of obtaining life story rights? Secondly, must I obtain permission or rights from everyone I will use in the story, mainly his father and mother? Any information you could give me on this would be greatly appreciated.
Answer: The studio may not care whether or not the real name of the individual is used. It will probably depend upon whether his name will help attract an audience to the picture. For instance, a studio wanting to do the Amy Fisher story will want to use her real name because that is what will attract an audience. On the other hand, although the events in your friend's life are interesting, and the studio wants to say that it is based on a true story, his name may be not known to the public, and therefore the use of his name may not be important. As far as the studio knowing it is a true story—this can be disclosed to the studio even though it is not necessarily disclosed to the public. The character in the story can have a fictional name, and you could change the circumstances enough so that your friend will not be identifiable from the context.
There is a section in my book, Dealmaking in the Film & Television Industry, that covers the process of obtaining life story rights. These are usually obtained on an Option/Purchase basis or a grant with a reversion clause. As far as obtaining permission from other people in the film, this is not always required. Certainly, if they are minor characters and you fictionalize them, you can probably avoid purchasing their life story rights. It should also be noted that if the person has done something newsworthy, you might have a right under the First Amendment to depict them without a release.
Question: You've touched on the subject of writing someone's life story a few times, but I haven't seen this exact wrinkle addressed: I want to write a screenplay on an incident of the 1920's. All the characters are deceased, which makes things easier. I've been researching various biographies and news clippings, but my question comes specifically with the use of the diaries and letters of these historical figures. My interest in being historically accurate seems to conflict with copyright issues. If I use their phrases and quotes, I'm violating copyright, and if I use my words in their mouths, I'm sacrificing accuracy. Are diaries a special case? Are they more in the realm of 'historical fact'? As you can see, I'm confused. By the way, the diaries that I refer to are of two kinds: one is published (as memoirs) and the rest are unpublished (residing in various museums or libraries). I have a similar question with regard to personal letters. Your thoughts are appreciated.
Answer: Diaries are no different from other copyrightable matter. Copyright can attach to both published and unpublished works. Under the old copyright law in effect before 1976, if one chose to publish one's work, and did not include a copyright notice, then the copyright might be lost. Since the characters are deceased, you do not have to worry about being sued for invasion of privacy or defamation. In some states, the right of publicity descends to one's heirs. In other states, it does not. If it descends, you may encounter some problems as far as spinning off merchandise from a film. However, you would be protected under the First Amendment as far as making the film about real-life individuals without a release. Relying upon the content and information in the diaries would not be copyright infringement. Facts, historical incidents, ideas, themes, and names are not copyrightable. However, if you start extensively quoting from the diaries (assuming the diaries are still protected under copyright law), that could be an infringement of the copyright owner's rights. Copyright is descendible and the heirs to the copyright owner can inherit the copyright. Before 1976, a copyright would last for 28 years, and then could be renewed for an additional 28 years. When the law was changed, an additional period of 19 years was added. Thus, it is likely that any work created more than 75 years ago is now in the public domain. If the copyright was not renewed, then the copyright could have expired earlier. You will have to determine when the copyright came into existence.
Question: If I sell my story and later decide I want to write another story that includes one or more of the characters from my first story, would I have to negotiate into the contract the rights to do so? For example, I write a script, it is made into a movie and then five years later I decide to write another script, or maybe a book, which deals with one of the supporting characters from that first script. Would I have to have contracted at the time of sale to keep the rights to the characters?
ANSWER: If you reserved author written sequel rights, you may be able to use the characters in a subsequent work. You need to carefully review the language in your agreement to determine what your rights are.
If you sold the entire copyright to your script, then the new owner now has all rights to it, until such time as it goes into the public domain. Those rights include the use of the characters in the work to the extent that characters are copyrightable. Finely drawn characters, especially those with a visual component such as a comic book character, can be protected under copyright law. Likewise, characters with a name, such as "James Bond" might be protectable under the laws of unfair competition. But general character and personality traits, such as a "hard-boiled private eye," are not copyrightable, and freely available for all writers to use. There are dozens of hard-boiled private eye characters created by different authors. So even if your character is now owned by another, you could create a new and different character that might share some of the same personality characteristics of your prior character.
When writers create an original script on their own (i.e., not as a work for hire for another), they often are able to reserve certain rights to their scripts when they sell the motion picture rights. These reserved rights often include dramatic, radio, live television, print publication and author written sequel rights. Moreover, if you had a reversion clause in your purchase agreement, it might provide that if the buyer does not produce a movie based on your script within a certain time (i.e., five years), all rights revert to you. Finally, if a writer is a member of the Writers Guild, he/she may be entitled to certain "separated rights" by virtue of the collective bargaining agreement between the guild and its signatory companies.
Frequently Asked Questions: Financing
Answers from Mark Litwak, Attorney At Law
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.
Question: Can you please provide me with the title of any books or other publications that provide a good overview of financing in the motion picture industry? I am particularly interested in limited partnerships and alternative forms of financing.
Answer: Financing in the motion picture industry covers a wide range of diverse topics. You might check out: Movie Money: Understanding Hollywood's (Creative) Accounting Practices by Bill Daniels & David Leedy; and The Biz: The Basic Business, Legal and Financial Aspects of the Film Industry by Schuyler M. Moore. I have just recently completed a book called Risky Business: Financing and Distributing Independent Films, which will be published by Silman-James Press.
If you are going to take equity investments you will need to comply with various security laws. This is a very complicated area of law, and it's best to retain a securities attorney if you are thinking of raising funds. See my article on film financing for additional information (at www.marklitwak.com).
Question: Can you tell me what an acceptable finder's fee is for someone bringing financing to a project that I've created? And would I pay this percentage based on the entire funding for the project or just the portion that I'll personally receive.
Answer: Finders' fees are generally 5% of the amount of money that the finder brings into a project. The percentage may be reduced if large amounts are raised.
Question: I am a screenwriter and co-producer working with established independents to develop a family film I wrote. We have received a 20/80 offer from a European trust: if we put up 20% of our $4 million budget, they will fund the rest of the film. Operating through their "sister" company, they have given us a letter of intent and an 8-page offer agreement, the specific terms of which they assure us are negotiable. We are understandably pleased about this, but part of the deal consists of depositing our 20% in a European bank, under our control, with them adding the remaining 80% within 30-60 days. After that, the agreement says, we can begin drawdown per our prescribed schedule to make the film. We pay a 2% finders fee and 6% interest on the funds we use, including our 20% because the sister company will take responsibility for repayment of the first money within one year after our agreement is signed. They also want 35% of our adjusted gross, meaning after our distributor gets paid, until we have repaid our loan and the interest accrued. We do not have to begin making interest payments until 2 years after the film is released. Now, this all sounds very nice, and my producers are pleased. I am a skeptic, however. I was raised to believe there is no free lunch, and if anything sounds too good to be true, it probably is. Despite the fact that the sister company rep says the terms are negotiable, he will not reveal the names or sources of the European trust, and he says that's deliberate because they don't want to be known. One of my producers says this is no surprise. But without knowing exactly who we are dealing with, how can we do diligence on this agreement? The sister company rep says that is why they will issue a bank guarantee from top rated bank for our 20%. It's also why the agreement says if they default, we get our money back, and why the agreement requires that we hire a mutually agreed upon independent auditor to oversee the escrow account. Yet they admit, after we deposit our 20%, all the money will be under THEIR control. They insist that they have built safeguards into the agreement that will protect us, and they are willing to add more. But, as much as I am dying to make this movie, I would hate to be ripped off for $800 K. What is your reaction? What kind of additional safeguards would you recommend?
Answer: My advice to you is that you should thoroughly check out the track record and integrity of the parties that you are thinking of going into business with. Then, hire yourself a good entertainment attorney to negotiate a tight agreement on your behalf.
Question: Could you give me any information on sponsoring? I'm currently in the middle of my script and I plan to produce and direct it myself. I've heard that sponsoring is quite common in the U.S. (I'm German but plan to make an American movie) and now would like to know more about it. Any kind of information would be greatly appreciated.
Answer: If what you mean by sponsoring is product placements, a good place to start is the Hollywood Bluebook Directory, which has a listing of product placement agents. These agents don't represent people they represent products. Product manufacturers may be willing to donate free goods or services and occasionally some money in order for their product to be shown in a movie. The amount of money that can be obtained from sponsors for feature films is usually quite limited. However, the Care Bears movies were reportedly funded entirely by the Care Bears Toy Company and Steven Spielberg's "The Goonies" received a hundred thousand dollars from Nabisco for plugging the Baby Ruth candy bars. Specialty and art films are unlikely to receive much cash in return for product placement.
Question: Several investors in my area, familiar with my company, work and industry relationships have banded together and offered to put together a sizeable pool of funds to make several films. As I am located in the state of Texas, I am wondering what is the best vehicle to use to accept the funds. The investors do not want involvement on a project-by-project basis so we are looking at doing this as a "blind" pool. The last part of the question is where would I find a boilerplate agreement that I could rework for the specifics of this deal.
Answer: This is much too complex a question to be answered summarily. The best vehicle would depend on the facts and circumstances, particularly how much risk the parties are willing to bear and who will control the enterprise. There may also be tax considerations. If you don't understand all the issues involved here, it would be dangerous indeed for you to rely on a boilerplate agreement.
Question: What is the difference between a "business plan" and a "limited offering memorandum"? Am I allowed to show and propose investment opportunities (i.e., business plan) to investors without having to file with the SEC before I actually receive financing from them?
Answer: A business plan and limited offering memorandum are similar in that they both discuss a proposed business endeavor. A business plan is meant for a potential business partner who will actively run the business with you. A limited offering memorandum is designed to comply with federal and state security laws by making full disclosure to a prospective passive investor. Federal and state security laws require that you make full disclosure before you take money from an investor who is not actively running the business. The disclosure document is called a prospectus or a limited offering memorandum. You do not need to register it with the SEC if you fall within one of the limited offering exemptions. This is a very complex area and you should consult an attorney who has experience in both entertainment and security law before proceeding. There are criminal and civil penalties for violating the law. Do not use a business plan to solicit money from private investors who are not going to be actively involved in making your movie.
Question: I'd like to learn more about presales. What specifically do I need to provide the presales agent to be taken seriously by potential investors, distributors, etc.? How do I find a presales agent, in particular, one who works with ultra-low budget features (with little star power attached)?
Answer: In order to find a foreign sales agent who will do pre-sales for you, you should check out the bumper editions of the trade papers (Hollywood Reporter, Variety, Screen International and Moving Pictures). Each of these publications distributes an extensive bumper edition before the major television and film markets. These editions list various foreign sales companies, along with ads for films being sold. By looking through these bumper editions, you can locate foreign sales companies that have a history of making pre-sales for your genre of picture. In order to succeed in the pre-sale business, you need a package that is sufficiently strong that a foreign buyer would be willing to make a binding commitment and sign a contract to purchase your film before it is made. While there are no hard and fast rules, the most desirable projects are those with name actors, to be made by a director with a track record, and based on a commercial story.
Question: What is the standard on paying back investors in an independent film? Specifically do investors continue to make money on the film indefinitely, or is there a cut-off point in relation to time or percentage made back on their initial investment?
Answer: Generally speaking, the first monies that come in from a film go to repay the capital contribution of the investors. In many instances, the investors may receive a return of 110% or 115% of their investment to compensate them for the loss of the use of their money over time. Then after all deferments and any other debts are paid, the revenue left (i.e., the profit) is typically split 50-50 with the producer. In other words, 50% of the profits go to the investors. The 50% that goes to the producer is often split between the producer and any third parties that are entitled to profit participation (i.e., the writer, director, or stars).
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.
Question: Can you please provide me with the title of any books or other publications that provide a good overview of financing in the motion picture industry? I am particularly interested in limited partnerships and alternative forms of financing.
Answer: Financing in the motion picture industry covers a wide range of diverse topics. You might check out: Movie Money: Understanding Hollywood's (Creative) Accounting Practices by Bill Daniels & David Leedy; and The Biz: The Basic Business, Legal and Financial Aspects of the Film Industry by Schuyler M. Moore. I have just recently completed a book called Risky Business: Financing and Distributing Independent Films, which will be published by Silman-James Press.
If you are going to take equity investments you will need to comply with various security laws. This is a very complicated area of law, and it's best to retain a securities attorney if you are thinking of raising funds. See my article on film financing for additional information (at www.marklitwak.com).
Question: Can you tell me what an acceptable finder's fee is for someone bringing financing to a project that I've created? And would I pay this percentage based on the entire funding for the project or just the portion that I'll personally receive.
Answer: Finders' fees are generally 5% of the amount of money that the finder brings into a project. The percentage may be reduced if large amounts are raised.
Question: I am a screenwriter and co-producer working with established independents to develop a family film I wrote. We have received a 20/80 offer from a European trust: if we put up 20% of our $4 million budget, they will fund the rest of the film. Operating through their "sister" company, they have given us a letter of intent and an 8-page offer agreement, the specific terms of which they assure us are negotiable. We are understandably pleased about this, but part of the deal consists of depositing our 20% in a European bank, under our control, with them adding the remaining 80% within 30-60 days. After that, the agreement says, we can begin drawdown per our prescribed schedule to make the film. We pay a 2% finders fee and 6% interest on the funds we use, including our 20% because the sister company will take responsibility for repayment of the first money within one year after our agreement is signed. They also want 35% of our adjusted gross, meaning after our distributor gets paid, until we have repaid our loan and the interest accrued. We do not have to begin making interest payments until 2 years after the film is released. Now, this all sounds very nice, and my producers are pleased. I am a skeptic, however. I was raised to believe there is no free lunch, and if anything sounds too good to be true, it probably is. Despite the fact that the sister company rep says the terms are negotiable, he will not reveal the names or sources of the European trust, and he says that's deliberate because they don't want to be known. One of my producers says this is no surprise. But without knowing exactly who we are dealing with, how can we do diligence on this agreement? The sister company rep says that is why they will issue a bank guarantee from top rated bank for our 20%. It's also why the agreement says if they default, we get our money back, and why the agreement requires that we hire a mutually agreed upon independent auditor to oversee the escrow account. Yet they admit, after we deposit our 20%, all the money will be under THEIR control. They insist that they have built safeguards into the agreement that will protect us, and they are willing to add more. But, as much as I am dying to make this movie, I would hate to be ripped off for $800 K. What is your reaction? What kind of additional safeguards would you recommend?
Answer: My advice to you is that you should thoroughly check out the track record and integrity of the parties that you are thinking of going into business with. Then, hire yourself a good entertainment attorney to negotiate a tight agreement on your behalf.
Question: Could you give me any information on sponsoring? I'm currently in the middle of my script and I plan to produce and direct it myself. I've heard that sponsoring is quite common in the U.S. (I'm German but plan to make an American movie) and now would like to know more about it. Any kind of information would be greatly appreciated.
Answer: If what you mean by sponsoring is product placements, a good place to start is the Hollywood Bluebook Directory, which has a listing of product placement agents. These agents don't represent people they represent products. Product manufacturers may be willing to donate free goods or services and occasionally some money in order for their product to be shown in a movie. The amount of money that can be obtained from sponsors for feature films is usually quite limited. However, the Care Bears movies were reportedly funded entirely by the Care Bears Toy Company and Steven Spielberg's "The Goonies" received a hundred thousand dollars from Nabisco for plugging the Baby Ruth candy bars. Specialty and art films are unlikely to receive much cash in return for product placement.
Question: Several investors in my area, familiar with my company, work and industry relationships have banded together and offered to put together a sizeable pool of funds to make several films. As I am located in the state of Texas, I am wondering what is the best vehicle to use to accept the funds. The investors do not want involvement on a project-by-project basis so we are looking at doing this as a "blind" pool. The last part of the question is where would I find a boilerplate agreement that I could rework for the specifics of this deal.
Answer: This is much too complex a question to be answered summarily. The best vehicle would depend on the facts and circumstances, particularly how much risk the parties are willing to bear and who will control the enterprise. There may also be tax considerations. If you don't understand all the issues involved here, it would be dangerous indeed for you to rely on a boilerplate agreement.
Question: What is the difference between a "business plan" and a "limited offering memorandum"? Am I allowed to show and propose investment opportunities (i.e., business plan) to investors without having to file with the SEC before I actually receive financing from them?
Answer: A business plan and limited offering memorandum are similar in that they both discuss a proposed business endeavor. A business plan is meant for a potential business partner who will actively run the business with you. A limited offering memorandum is designed to comply with federal and state security laws by making full disclosure to a prospective passive investor. Federal and state security laws require that you make full disclosure before you take money from an investor who is not actively running the business. The disclosure document is called a prospectus or a limited offering memorandum. You do not need to register it with the SEC if you fall within one of the limited offering exemptions. This is a very complex area and you should consult an attorney who has experience in both entertainment and security law before proceeding. There are criminal and civil penalties for violating the law. Do not use a business plan to solicit money from private investors who are not going to be actively involved in making your movie.
Question: I'd like to learn more about presales. What specifically do I need to provide the presales agent to be taken seriously by potential investors, distributors, etc.? How do I find a presales agent, in particular, one who works with ultra-low budget features (with little star power attached)?
Answer: In order to find a foreign sales agent who will do pre-sales for you, you should check out the bumper editions of the trade papers (Hollywood Reporter, Variety, Screen International and Moving Pictures). Each of these publications distributes an extensive bumper edition before the major television and film markets. These editions list various foreign sales companies, along with ads for films being sold. By looking through these bumper editions, you can locate foreign sales companies that have a history of making pre-sales for your genre of picture. In order to succeed in the pre-sale business, you need a package that is sufficiently strong that a foreign buyer would be willing to make a binding commitment and sign a contract to purchase your film before it is made. While there are no hard and fast rules, the most desirable projects are those with name actors, to be made by a director with a track record, and based on a commercial story.
Question: What is the standard on paying back investors in an independent film? Specifically do investors continue to make money on the film indefinitely, or is there a cut-off point in relation to time or percentage made back on their initial investment?
Answer: Generally speaking, the first monies that come in from a film go to repay the capital contribution of the investors. In many instances, the investors may receive a return of 110% or 115% of their investment to compensate them for the loss of the use of their money over time. Then after all deferments and any other debts are paid, the revenue left (i.e., the profit) is typically split 50-50 with the producer. In other words, 50% of the profits go to the investors. The 50% that goes to the producer is often split between the producer and any third parties that are entitled to profit participation (i.e., the writer, director, or stars).
Frequently Asked Questions: Distribution
Answers from Mark Litwak, Attorney At Law
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.
Question: Realistically speaking if I self-finance a picture for four million dollars and have stars such as Kevin Spacey, Forrest Whitaker, Jean Reno or some other international star, and Natasha Henstridge, do you think I will have enough clout to get a distributor to pony up all my budget for the rights and some guaranteed advances on profits so that I could get back around 5 million from a North American Distributor for all rights (so my investors will see their cash back), exclusive of future profits? Also, would you recommend I sell the film territory by territory, country by country, before or after it is made? And do you think from foreign, even if I use a sales rep, I could get at least another two to four million in sales/guarantees? Breaking down the major countries: Germany, Italy, France, U.K., Japan, Spain, and Netherlands, what do you think I could get from each based on the level of talent I mentioned, or any similar level talent, including the fact the project is a psycho-erotic drama.
Answer: I think it is possible, but not likely, that you will get your five million back and then some from a domestic distributor. But, of course, everything depends on the quality of the film that is produced. However, if you look at what most indie films earn domestically, it is not likely. I think you should try to reduce your budget, put as much as possible up on the screen, and check beforehand with an experienced distributor to determine the appeal of the cast in the international marketplace. If you have not sold to foreign buyers before, you may find it difficult to convince them to purchase from you even if you have an attractive package. It is likely that you will need to work with an experienced and honest sales agent to succeed.
Question: I've purchased and read both of your books. They're excellent. Here's my Q. If you have a great script (romantic action adventure) and you raise the negative costs through private funding (limited partnership, etc.) and you have attached a star and well respected director, what are your chances of negotiating a distribution deal favorable enough to give your investors some confidence they will see some return. In other words, if I've got 25 million dollars and the distributor invests 15 - 25 in advertising and distribution what are the odds on a 50/50 1st dollar in split between the producer and distributor?
Answer: If your movie is something that is highly desirable, then you'll have a lot of negotiating clout and can probably get a good deal. On the other hand, if the movie doesn't turn out that well, you may not be able to get any distribution at all. It's very rare for someone to raise money from private investors to fund a 25 million dollar picture. Most pictures funded by private investors have much lower budgets. If you deal with honest distributors and have a tight contract, to make a good movie, you stand a good chance of seeing money.
Question: A friend and I are trying to produce our first independent film. We plan to raise money for the production costs through private investors. At the same time we are trying to live as we do this. Is it possible for us to receive small amounts of money from people and local businesses, $100 here $500 there given to us and the project as a GIFT, so that we can continue our fundraising practices full time? These would not be repaid but we would give a "special thanks to" in the credits. Is this possible? We would like to approach local businesses with this concept since the subject matter of the film is of local interest. Are there any guidelines for this sort of thing?
Answer: There is no problem with other people giving you gifts, and there is no problem with giving credits or acknowledging people for gifts in your credits Gifts and loans are not a "security." Consequently, the security laws do not apply. As far as taking money from investors, however, if these investors are passive investors, that is, they are not actively involved in making the movie, you should make sure that you comply with state and federal securities laws. You should never take money from investors until you have given them a written limited offering memorandum, sometimes called a prospectus. This should be prepared by a lawyer who is knowledgeable in entertainment and securities laws.
Question: Can you provide me with any information related to the direct-to-video industry? If a have a script, how can I get it to video vs. network or cable?
Answer: Go to a video store and find the names of the distributors of videos like yours, or read Video Business Magazine, which lists many videos including direct-to-video programs. You may also want to attend the next Video Software Dealers Association (VSDA), a trade convention for people in the video business.
Question: The Estate we represent is in negotiation with a studio to obtain payment for domestic distribution rights to a film made some years ago. The studio earns about $25,000 - $30,000 per year from these rights. The term for which they seek re-license will be 47 years. We have not previously encountered this situation and wonder what appropriate compensation would be. The studio has already made a conservative offer so they view the income as viable. We thought anything between ten and fifty percent of their income can be defended but hope to make an offer that is based on some precedent. Can you please advise?
Answer: The film was made a number of years ago and is now earning $25,000 to $30,000 per year. I assume this money is coming from the home video market. Producers of films often receive a royalty of 20-25% of the wholesale price of home videos sold. Keep in mind that many studios license their films to their own home video subsidiaries. Those subsidiaries pay a royalty to the parent company, which in turn, shares that revenue with the producer. So I would first make sure that this is all they are generating from exploitation of these rights. Ascertain exactly which rights they are using and reserve all other rights. Then try to obtain at least 20% of the wholesale price as a royalty.
Question: I have been working with developers of interactive content for broadband distribution via e.g. web TV, @Home, etc. and wondered whether you have been adding language to standard talent and production agreements for television programming in contemplation of the types of "derivatives" to a show resulting from the convergence with other content/technology/etc. after the show has been produced. I'm curious as to whether and what the industry is focusing on in negotiating talent agreements (for example) in light of convergence technologies?
Answer: Yes, attorneys are becoming much more careful in limiting what rights their clients are granting. In many cases, we specifically restrict the use of films so that they cannot be disseminated over the Internet or turned into interactive programs unless those rights are also purchased.
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.
Question: Realistically speaking if I self-finance a picture for four million dollars and have stars such as Kevin Spacey, Forrest Whitaker, Jean Reno or some other international star, and Natasha Henstridge, do you think I will have enough clout to get a distributor to pony up all my budget for the rights and some guaranteed advances on profits so that I could get back around 5 million from a North American Distributor for all rights (so my investors will see their cash back), exclusive of future profits? Also, would you recommend I sell the film territory by territory, country by country, before or after it is made? And do you think from foreign, even if I use a sales rep, I could get at least another two to four million in sales/guarantees? Breaking down the major countries: Germany, Italy, France, U.K., Japan, Spain, and Netherlands, what do you think I could get from each based on the level of talent I mentioned, or any similar level talent, including the fact the project is a psycho-erotic drama.
Answer: I think it is possible, but not likely, that you will get your five million back and then some from a domestic distributor. But, of course, everything depends on the quality of the film that is produced. However, if you look at what most indie films earn domestically, it is not likely. I think you should try to reduce your budget, put as much as possible up on the screen, and check beforehand with an experienced distributor to determine the appeal of the cast in the international marketplace. If you have not sold to foreign buyers before, you may find it difficult to convince them to purchase from you even if you have an attractive package. It is likely that you will need to work with an experienced and honest sales agent to succeed.
Question: I've purchased and read both of your books. They're excellent. Here's my Q. If you have a great script (romantic action adventure) and you raise the negative costs through private funding (limited partnership, etc.) and you have attached a star and well respected director, what are your chances of negotiating a distribution deal favorable enough to give your investors some confidence they will see some return. In other words, if I've got 25 million dollars and the distributor invests 15 - 25 in advertising and distribution what are the odds on a 50/50 1st dollar in split between the producer and distributor?
Answer: If your movie is something that is highly desirable, then you'll have a lot of negotiating clout and can probably get a good deal. On the other hand, if the movie doesn't turn out that well, you may not be able to get any distribution at all. It's very rare for someone to raise money from private investors to fund a 25 million dollar picture. Most pictures funded by private investors have much lower budgets. If you deal with honest distributors and have a tight contract, to make a good movie, you stand a good chance of seeing money.
Question: A friend and I are trying to produce our first independent film. We plan to raise money for the production costs through private investors. At the same time we are trying to live as we do this. Is it possible for us to receive small amounts of money from people and local businesses, $100 here $500 there given to us and the project as a GIFT, so that we can continue our fundraising practices full time? These would not be repaid but we would give a "special thanks to" in the credits. Is this possible? We would like to approach local businesses with this concept since the subject matter of the film is of local interest. Are there any guidelines for this sort of thing?
Answer: There is no problem with other people giving you gifts, and there is no problem with giving credits or acknowledging people for gifts in your credits Gifts and loans are not a "security." Consequently, the security laws do not apply. As far as taking money from investors, however, if these investors are passive investors, that is, they are not actively involved in making the movie, you should make sure that you comply with state and federal securities laws. You should never take money from investors until you have given them a written limited offering memorandum, sometimes called a prospectus. This should be prepared by a lawyer who is knowledgeable in entertainment and securities laws.
Question: Can you provide me with any information related to the direct-to-video industry? If a have a script, how can I get it to video vs. network or cable?
Answer: Go to a video store and find the names of the distributors of videos like yours, or read Video Business Magazine, which lists many videos including direct-to-video programs. You may also want to attend the next Video Software Dealers Association (VSDA), a trade convention for people in the video business.
Question: The Estate we represent is in negotiation with a studio to obtain payment for domestic distribution rights to a film made some years ago. The studio earns about $25,000 - $30,000 per year from these rights. The term for which they seek re-license will be 47 years. We have not previously encountered this situation and wonder what appropriate compensation would be. The studio has already made a conservative offer so they view the income as viable. We thought anything between ten and fifty percent of their income can be defended but hope to make an offer that is based on some precedent. Can you please advise?
Answer: The film was made a number of years ago and is now earning $25,000 to $30,000 per year. I assume this money is coming from the home video market. Producers of films often receive a royalty of 20-25% of the wholesale price of home videos sold. Keep in mind that many studios license their films to their own home video subsidiaries. Those subsidiaries pay a royalty to the parent company, which in turn, shares that revenue with the producer. So I would first make sure that this is all they are generating from exploitation of these rights. Ascertain exactly which rights they are using and reserve all other rights. Then try to obtain at least 20% of the wholesale price as a royalty.
Question: I have been working with developers of interactive content for broadband distribution via e.g. web TV, @Home, etc. and wondered whether you have been adding language to standard talent and production agreements for television programming in contemplation of the types of "derivatives" to a show resulting from the convergence with other content/technology/etc. after the show has been produced. I'm curious as to whether and what the industry is focusing on in negotiating talent agreements (for example) in light of convergence technologies?
Answer: Yes, attorneys are becoming much more careful in limiting what rights their clients are granting. In many cases, we specifically restrict the use of films so that they cannot be disseminated over the Internet or turned into interactive programs unless those rights are also purchased.
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