Does the film producer really need a film lawyer or entertainment attorney as a matter of professional practice? An entertainment attorney’s own propensity and my stacking of the question notwithstanding, which might naturally indicate a “yes” answer 100% of the time — the forthright answer is, “it depends” میثم ابراهیمی. A number of producers these days are themselves film lawyers, entertainment legal representatives, or other types of lawyers, and so, often can take care of themselves. But the film producers to worry about, are the ones who act as if they are entertainment lawyers — but without a license or entertainment attorney legal experience to back it up. Filmmaking and movie practice comprise a business whereby these days, unfortunately, “bluff” and “bluster” sometimes serve as alternatives for actual knowledge and experience. But “bluffed” documents and inadequate production procedures will never escape the trained eye of entertainment legal representatives earning a living for the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, I assume, the job function of film production counsel and entertainment lawyer is still secure.
I also suppose that there are invariably a few lucky filmmakers who, throughout the entire production process, fly under the proverbial radar without entertainment attorney accompaniment. They will seemingly avoid pitfalls and debts like flying bats are well-known to avoid people’s hair. By way of analogy, one of my best friends has never had any health insurance for years, and he is still in good shape and in the economy afloat — this week, anyway. Taken in the aggregate, some people are invariably luckier than others, and some people are invariably more inclined than others to roll the chop.
But it is all too bare-bones and pedestrian to tell ourselves that “I’ll avoid the need for film lawyers if i simply stay out of trouble and grow careful”. An entertainment lawyer, especially in the realm of film (or other) production, can be a real constructive asset to a movie producer, as well as the film producer’s personally-selected inoculation against potential debts. If the producer’s entertainment attorney has been through the process of film production previously, then that entertainment lawyer has already learned many of the harsh lessons regularly dished out by the commercial world and the film business.
The film and entertainment lawyer can therefore spare the producer many of those pitfalls. How? By clear thinking, careful planning, and — this is the absolute key — skilled, thoughtful and complete documentation of all film production and related activity. The film lawyer should not be thought of as simply the person seeking to establish compliance. Sure, the entertainment lawyer may sometimes really do the one who says “no”. But the entertainment attorney can be a positive force in the production as well.
The film lawyer can, in the course of legal representation, assist the producer as an effective business consultant, too. If that entertainment lawyer has been involved with scores of film stage productions, then the movie producer who hires that film lawyer entertainment attorney advantages of that very cache of experience. Yes, it sometimes may be difficult to stretch the film budget to allow for counsel, but professional filmmakers tend to view the legal cost expenditure to be a fixed, predictable, and necessary one — akin to the fixed obligation of rent for the production office, or the cost of film for the cameras. While some film and entertainment lawyers may price themselves out of the price range of the average independent film producer, other entertainment legal representatives do not.
Enough generalities. For what specific tasks must a producer typically retain a film lawyer and entertainment attorney?:
- INCORPORATION, OR FORMATION OF AN “LLC”: To paraphrase Michael Douglas’s Gordon Gekko character in the movie “Wall Street” when speaking to Bud Fox while on the morning beach on the oversized mobile phone, this entity-formation issue usually indicates the entertainment attorney’s “wake-up call” to the film producer, telling the film producer that it is time. If the producer doesn’t properly create, file, and a corporate or other appropriate entity where to conduct business, and if the film producer doesn’t thereafter make sure you keep that entity shielded, says the entertainment lawyer, then the film producer is potentially hurting himself or herself. Without the shield against liability that an entity can provide, the entertainment attorney opines, the movie producer’s personal assets (like house, car, bank account) are at risk and, in a worst-case scenario, could ultimately be seized to meet up with the debts and debts of the film producer’s business. In other words:
Patient: “Doctor, it is painful my head when i do that”.
Doctor: “So? Don’t do that”.
Like it or not, the film lawyer entertainment attorney continues, “Film is a risky business, and the statistical majority of motion pictures can fail in the economy — even at the San Fernando Valley film recording studio level. It is nonrational to run a film business or any other form of business out of one’s own personal bank account”. Besides, it looks of little substance, a real concern if the producer wants to attract talent, lenders, and distributors at any point in the future.
The choices of where and how to file an entity are often instigated by entertainment lawyers but then driven by situation-specific variables, including tax concerns relating to the film or movie company sometimes. The film producer should let an entertainment attorney do it and do it correctly. Entity-creation is affordable. Good lawyers don’t look at incorporating a client as a profit-center anyway, because of the obvious potential for start up company that an entity-creation brings. While the film producer must be aware that under U. S. law a client can fire his/her lawyer at any time at all, many entertainment lawyers who do the entity-creation work get asked to do further work for that same client — especially when the entertainment attorney bills the first job reasonably.
I wouldn’t recommend self-incorporation by a non-lawyer — any more than I would tell a film producer-client what characters to lease in a movie — or any more than I would tell a D. P. -client what lens to use on a specific film shot. As will be true on a film production set, everybody has their own job to do. And I believe that as soon as the producer lets a competent entertainment lawyer do his or her job, things will quickly gel for the film production with techniques that couldn’t even be originally foreseen by the movie producer.
- SOLICITING INVESTMENT: This trouble also often constitutes a wake-up call of sorts. Let’s say that the film producer wants to manufacture a movie with other people’s money. (No, not an unusual scenario). The film producer will likely start soliciting funds for the movie from so-called “passive” investors in several possible ways, and may actually start collecting some debts as a result. Sometimes this occurs prior to the entertainment lawyer hearing about it post facto from his or her client.
If the film producer is not a lawyer, then the producer should not even think of “trying this at home”. Like it or not, the entertainment lawyer opines, the film producer will thereby be selling securities to people. If the producer promises investors some pie-in-the-sky results in the context of this inherently risky business called film, and then gathers money on the basis of that representation, believe me, the film producer will have even more grave problems than conscience to deal with. Securities compliance work is among the roughest of matters faced by an entertainment attorney.
As both entertainment lawyers and securities lawyers will opine, botching a solicitation for film (or any other) investment can have severe and federally-mandated consequences. No matter how great the film screenplay is, it’s never worth monetary penalties and gaol time — not to mention the veritable unspooling of the incomplete movie if and when the producer gets nailed. All the while, it is shocking to see how many ersatz film producers in real life try to drift their own “investment prospectus”, complete with boastful anticipated multipliers of the box office figures of the famed motion pictures “E. T. inch and “Jurassic Park” combined. They draft these monstrosities with their own sheer creativity and imagination, but usually with no entertainment or film lawyer or other a lawyer. I am sure that some of these producers think of themselves as “visionaries” while writing the prospectus. Entertainment legal representatives and all of those other bar, and bench, may tend to consider them, instead, as prospective ‘Defendants’.
- DEALING WITH THE GUILDS: Let’s assume that the film producer has decided, even without entertainment attorney guidance yet, that the production entity will need to be a signatory to collective bargaining agreements of unions such as Screen Characters Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This is a intended theme area that some film producers can handle themselves, particularly producers with experience. Although if the film producer can afford it, the producer should consult with a film lawyer or entertainment lawyer prior to making even any initial contact with the guilds. The producer should certainly consult with an entertainment attorney or film lawyer prior to giving any documents to the guilds, or signing any of their documents. Failure to plan out these guild issues with film or entertainment attorney counsel ahead of time, could lead to problems and expenses that sometimes make it cost-prohibitive to thereafter continue with the picture’s further production.