The Pocket Lawyer for Filmmakers This page intentionally left blank The Pocket Lawyer for Filmmakers A Legal Toolkit for Independent Producers By Thomas A Crowell, Esq AMSTERDAM • BOSTON • HEIDELBERG • LONDON NEW YORK • OXFORD • PARIS • SAN DIEGO SAN FRANCISCO • SINGAPORE • SYDNEY • TOKYO Focal Press is an imprint of Elsevier Acquisitions Editor: Publishing Services Manager: Senior Project Manager: Assistant Editor: Marketing Manager: Cover Design: Elinor Actipis George Morrison Brandy Lilly Robin Weston Christine Degon Veroulis Alisa Andreola Focal Press is an imprint of Elsevier 30 Corporate Drive, Suite 400, Burlington, MA 01803, USA Linacre House, Jordan Hill, Oxford OX2 8DP, UK Copyright © 2007,Thomas Crowell Published by Elsevier Inc All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher Permissions may be sought directly from Elsevier’s Science & Technology Rights Department in Oxford, UK: phone: (+44) 1865 843830, fax: (+44) 1865 853333, E-mail: permissions@elsevier.com.You may also complete your request on-line via the Elsevier homepage (http://elsevier.com), by selecting “Support & Contact” then “Copyright and Permission” and then “Obtaining Permissions.” Recognizing the importance of preserving what has been written, Elsevier prints its books on acid-free paper whenever possible Library of Congress Cataloging-in-Publication Data Crowell,Thomas The pocket lawyer for filmmakers : a legal toolkit for independent factors / by Thomas Crowell p cm Includes bibliographical references and index ISBN 0-240-80842-8 Independent filmmakers—Legal status, laws, etc.—United States Motion pictures—Law and legislation—United States Copyright—Motion pictures—United States I.Title KF4298.Z9C76 2007 343.7309’9—dc22 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN 13: 978-0-240-80842-0 ISBN 10: 0-240-80842-8 For information on all Focal Press publications visit our website at www.books.elsevier.com 07 08 09 10 11 Printed in the United States of America 2007007525 CONTENTS Disclaimer Dedication Acknowledgments About the Author xxiii xxv xxvii xxix PART I OVERVIEW OF THE POCKET LAWYER INTRODUCTION Filmmaker FAQs PART II LEGAL BUILDING BLOCKS Contract and Intellectual Property 11 COPYRIGHT AND INTELLECTUAL PROPERTY 13 What Is a Copyright? 13 Exclusive Rights Under Copyright 14 The Film Property 14 ISSUES IN FILM CONTRACTING 17 Deal Points 17 Who Are the Parties? 18 What Are You Getting? 18 What Are You Giving in Exchange for What You’re Getting? 19 What Rights Do You Have or Are You Giving Up? 19 What Promises Are Being Made? 20 What Protections Do You Have? 20 vi CONTENTS What Rules Govern the Business Relationship Between the Parties? 20 What Happens When Something Goes Wrong? 21 PART III THE PRODUCTION COMPANY Filmmaking Is a Business 24 SETTING UP THE PRODUCTION COMPANY 25 Business Concepts 25 Types of Business Entities 26 Loan-Out Companies 31 YOUR PROFESSIONAL TEAM 33 Attorneys 33 Accountants 36 Insurance 37 FINANCING YOUR MOVIE 41 Pay for the Film Out of Pocket 42 Debt 42 Equity 43 Investors and Securities Laws 43 Step by Step: Securities Compliance 47 PART IV DEVELOPMENT Creating, Acquiring, and Managing the Film Property 50 IDEA RIGHTS: (PROTECTING YOUR PITCHES AND AVOIDING IDEA “THEFT”) 51 Nondisclosure Agreements and Submission Releases 51 Goals and Deals 53 Deal Points: Submission Release 54 Deal Points: Non-Disclosure Agreement (NDA) 55 Law: Protecting Ideas and the “Novelty” Requirement 56 Business Issues: Finances and Costs 57 CONTENTS Negotiation Tips and Tricks 57 Step by Step: Protecting an Idea 58 Follow-Up 58 CREATING A SCREENPLAY 61 Writing the Screenplay by Yourself (Sole Authorship) 61 Writing Collaboration (Writing Partners and Joint Authorship) 63 Deal Points 65 The Writers Guild of America (WGA) 69 ACQUIRING SCREENPLAY RIGHTS 73 Buying Rights 73 The Screenplay Option/Purchase 74 Major Deal Points: The Option Agreement 75 Major Deal Points: The Purchase Agreement 77 Hiring a Screenwriter 82 Major Deal Points: Writer’s Services Agreement 84 Screenplay Adaptations 88 Major Deal Points: The Literary Property Acquisition Agreement 88 Life Story Rights 94 Major Deal Points: Life Rights Consent and Release 97 CHAIN OF TITLE: THE CARE AND FEEDING OF YOUR COPYRIGHT 101 What is a Chain of Title? 101 Copyright Searches and Permissions 102 Copyright Registration 106 ©—The Copyright Notice 110 Copyright Recordation, Assignments, and Transfers 110 Certificate of Authorship 113 PART V PRE-PRODUCTION 10 HIRING CAST AND CREW—A LOT OF LAW TO WORRY ABOUT 117 Federal and State Labor and Employment Laws – An Overview 118 vii viii CONTENTS Unions 119 Service Agreements 120 Checklist: Elements of a Service Agreement 120 11 THE PRODUCER’S SERVICES AGREEMENT 123 Major Deal Points: Producer’s Services Agreement 124 12 THE DIRECTOR’S SERVICE AGREEMENTS 131 Major Deal Points: Director’s Services Agreement 132 13 CREW SERVICES AGREEMENT 141 Major Deal Points: Crew’s Services Agreement 142 14 PERFORMERS 149 The Screen Actors Guild (SAG) 149 The Performer’s Services Agreement 155 Major Deal Points: Actor’s Services Agreement 156 How to Get a Script to a SAG Actor 164 PART VI PRODUCTION Quiet on the Set! 170 15 EXTRAS AND DEPICTION RELEASES 171 Depiction Releases 171 Caution – No Fraud or Misrepresentations Allowed! 175 16 LOCATIONS 177 Why You Need a Location Release 177 Getting Permission to Use a Location 179 Major Deal Points: Location Agreement 181 17 WHAT’S ON THE SET? 185 On-Set IP Infringement 185 Copyrights on the Set 187 Major Deal Points: Artwork License 190 Trademarks on the Set 192 E&O and Other Contractual Obligations 196 CONTENTS PART VII POST-PRODUCTION It’s in the Can 200 18 POST-PRODUCTION STAFF 201 Hiring Post-Production Artists and Technicians Directly 201 Artists and Technicians Provided by Post-Production Facilities 201 19 MUSIC 203 Music Licensing 203 Major Deal Points: Music Licensing Agreement 207 Stock and Royalty-Free Music 210 Commissioned Music 210 Major Deal Points: Composer’s Services Agreement 211 20 FILM CLIPS AND STOCK FOOTAGE 217 Stock Footage Company 218 Movie Studio Footage 218 Major Deal Points: The Film Clip License Agreement 219 The National Archives 221 21 CREDITS & COPYRIGHT NOTICE 223 Copyright Notice and Disclaimer 223 PART VIII DISTRIBUTION 22 SELLING YOUR FILM 227 What Distributors Do 227 Types of Distribution Deals 228 The Money Pipeline 229 How Does the Money Get from a Movie Theater to the Producer Via a Net Distribution Deal? 229 Distribution Rights Acquisition Agreement 231 Major Deal Points: Distribution Agreement 231 Tips for Attracting a Distributor 240 ix This page intentionally left blank INDEX A Above-the-line costs, 37 Accountants, 36–37 Accounting for Director’s Services Agreements, 136 for Performer’s Services Agreements, 161 for Producer’s Services Agreement, 126–127 under Screenplay Purchase Agreements, 79 Accredited investors, 45 Actors, 149–167 See also Performer’s Services Agreements; Screen Actors Guild agents and, 164–165 auditions for, 166 likeness approval for, 301 Performer’s Services Agreement for, 149, 155–164 quotes for, 166 SAG for, 6, 149–155 Actor’s Fund of America, 316 The Addams Family, 315 “Additional insureds,” 38 AFM See American Federation of Musicians AFTRA See American Federation of Television and Radio Artists Agents, 164–165 Agreements See Assumption Agreements; Collective Bargaining Agreements; Composer’s Services Agreements; Co-production agreements; Crew Services Agreements; Director’s Services Agreements; Distribution agreements; Distribution Rights Acquisition Agreements; Film Clip License Agreement; Life Rights Consent Agreements; Literary Property Acquisition Agreements; Low-budget agreements; Master Bargaining Agreements; Modified Low-budget agreements; Music Licensing Agreements; Negative Pickup Agreements; Nondisclosure agreements; Performer’s Services Agreements; Producer’s Services Agreement; Production-Financing/Distribution Agreements; Screenplay Purchase Agreements; Service Agreements; Short film agreements; Ultra-low budget agreements;Writer’s Collaboration Agreements;Writer’s Services Agreements American Cinematographers Manual, American Federation of Musicians (AFM), 211 American Federation of Television and Radio Artists (AFTRA), 119 American Society of Composers, Artists and Publishers (ASCAP), 205 American University Center for Social Media (AUCSM), 188 Approval rights, under Performer’s Services Agreements, 160 Arbitration under contract law, 21 for deal points, 298 Architectural copyrights, 188–190 Artwork licenses, 190–197 assignment of rights in, 191 compensation for, 191 credits and, 191 E&O insurance and, 196–197 infringement under, 195–196 waivers in, 192 ASCAP See American Society of Composers, Artists and Publishers Associate producers, 123 Assumption Agreements, 239 Attorneys, 33–35 copyrights and, 104 fees for, 35 Volunteer Lawyers for the Arts Organization and, 35 AUCSM See American University Center for Social Media Audiovisual works, 250–251 330 INDEX Auditions, 166 Authors See also Joint authorship, of screenplays; Screenwriters under copyrights, 250 B Below-the-line costs, 37 The Blair Witch Project, 43 BMI See Broadcast Music, Inc Bonus compensation, 19 under Writer’s Services Agreement, 85 Breach of contract, 21, 287–290 injunctions from, 290 material, 288 minor, 288 remedies for, 288–290 Broadcast Music, Inc (BMI), 205 Budgets, for productions above-the-line costs, 37 below-the-line costs, 37 Buyouts, 19 C C Corporations, 29–30 taxation for, 30 California child labor laws in, 314–317 DLSE in, 309 independent contractors in, 309–310 Casting directors, 165–166 Cease-and-Desist letters, 35–36 Certificate of Authorship, 113 Chain of title, 101–114 See also Copyrights Certificate of Authorship as part of, 113 definition of, 101 in screenplay clearance reports, 105–106 Chaplin, Charlie, 315 Child Actor’s Bill See Coogan Law Child labor laws, 313–317 in California, 314–316 Coogan Law, 315 disaffirmance of, 316–317 mandatory trust funds under, 315–317 in New York, 316–317 PEMEI and, 314 permit requirements, 314, 314n11, 316–317 teacher requirements under, 314–315, 318 work hours under, 314 Child Performer Education and Trust Act, New York (2003), 317 Children See Minors Cinematography See Pick-up shots; Principal photography; Second-unit photography Clauses See Favored-nations clauses; Inducement clauses; Merger clauses; Morals clauses; Savings clauses Clearances, on set, 186 Collective Bargaining Agreements, 120 Companies See Corporations; General partnerships; Limited liability companies; Limited partnerships; Loan-out companies; Production companies; Sole proprietorships Compensation See also Contingent compensation; Deferred compensation; Fixed compensation; Net Profits; Per diems; Residuals for artwork licenses, 191 bonuses as, 19, 85 buyouts as, 19 under Composer’s Services Agreements, 213–214 contingent, 19, 81, 85 under Crew Services Agreements, 144 as deal points, 292 deferred, 19, 85 distribution rights as, 19 extension payments as, for Option Agreements, 76 fixed, 19, 81, 85 licensing fees as, 19 under Life Rights Consent Agreements, 99–100 under Literary Property Acquisition Agreements, 90 under location agreements, 182 net profits as, 19 option prices as, 19 under Producer’s Services Agreement, 126 rental fees as, 19 royalties as, 19 Compensatory damages, 288–289 Completion bonds, 39 completion guarantor for, 39 INDEX Composers, 212 Composer’s Services Agreements, 211–216 compensation under, 213–214 composers under, 212 credits under, 214 E&O insurance under, 215 inducement clauses in, 215 publicity under, 214 terms of, 212–213 Cones, John W., Consequential damages, 289 Contingent compensation, 19, 81, 85 as deal point, 292 under Director’s Services Agreements, 135–136 under Performer’s Services Agreements, 158 under Producer’s Services Agreement, 126 under Screenplay Purchase Agreements, 81 Contract law, for films, 12, 17–21, 283–290, 284 arbitration under, 21 clauses under, 17 compensation under, 19 damages under, 283, 288–289 deal memos under, 17 deal points in, 17 elements of, 284 financing under, 18–19 intellectual property rights under, 18 leverage in, 283 parties under, 18 physical property under, 18 services under, 18 Contracts, 284–290 See also Breach of contract; Contract law, for films; Deal points; Form contracts; Investment contracts; Services contracts breach of contract, 21, 287–290 capacity in, 286 consideration in, 285 definiteness in, 285 elements of, 284 express, 287 implied, 287 legal purpose of, 286–287 Coogan, Jackie, 315 Coogan Law, 315 Co-production agreements, 41 Copyright(s), 10, 249–250 See also Idea rights architectural, 188–190 assignment/transfer of, 110–111, 110n5 attorneys and, 104 for audiovisual works, 250–251 Certificate of Authorship and, 113 clearing for, 102 constructive notice for, 110 Copyright License Request Letter for, 267–268 costs for, 62, 109 de minimis for, 259–260 derivative works under, 251 development and, 50 under Distribution Rights Acquisition Agreements, 238 duration of works and, 252, 268–269 under Film Clip License Agreement, 220 on film sets, 187–190 infringement of, 269–271 licensing of, 266–267 under Literary Property Acquisition Agreements, 89–90 for music licensing, 203–205 notice of, 110 ownership of, 260–262 during post-production, 202 public domain and, 102, 252–253 recordation of, 110, 112 referenced, 105 registration of, 106–109, 268 rights under, 250 scènes faire and, 255–256 in screenplay clearance reports, 105 under Screenplay Purchase Agreements, 78 searches for, 103–104 short form assignment of, 111–112 terminology for, 249–252 work made for hire and, 263–265 Writer’s Collaboration Agreements and, 65–66 Copyright infringement, 269–271 penalties for, 270 proof of, 269–270 331 332 INDEX Copyright law, 10, 13–16 under Distribution Rights Acquisition Agreements, 238 distribution under, 14 doctrine of independent creation and, 260 exclusive rights under, 14 fair use under, 176, 187–188, 196, 256–259 film properties under, 14–16 ideas under, 254 joint authorship of screenplays under, 67, 69, 261–263 licensing under, 15 protections under, 13, 253–256 “work” defined under, 107 Copyright License Request Letter, 267–268 Copyright notices, 110, 223 disclaimers and, 223 Corporations, 25, 27, 29–30 C., 29–30 Subchapter S., 29–30 Creative control as deal point, 299 in Director’s Services Agreements, 134 Credits artwork licenses and, 191 under Composer’s Services Agreements, 214 under Crew Services Agreements, 145 as deal point, 293 under Director’s Services Agreements, 136 under Distribution Rights Acquisition Agreements, 235 under Film Clip License Agreement, 220 under Life Rights Consent Agreements, 100 under Literary Property Acquisition Agreements, 91 location agreements and, 183 under Music Licensing Agreements, 209 under Performer’s Services Agreements, 159 under Producer’s Services Agreement, 127 under Screenplay Purchase Agreements, 80 WGA policy for, 70–71 under Writer’s Services Agreements, 87 Crew Services Agreements, 131, 141–147 compensation under, 144 credits under, 145 exclusivity during, 144 inducement clauses in, 146 per diems under, 144 perquisites as part of, 147 publicity under, 145 reimbursements under, 144 rights assignment under, 145 termination of, 146 terms of, 143–144 D Damages, 283, 288–289 compensatory, for breach of contract, 288–289 consequential, 289 under contract law, for films, 283 De minimis (of the least), for copyrights, 259–260 Deal memos, 17 in Performer’s Services Agreements, 155 Deal points, 17, 291–306 approval as, 291–292 arbitration for, 298 choice of law in, 299 compensation as, 292 creative control as, 299 credits as, 293 default-and-cure provision as, 299–300 delegation of, 298 favored-nations clause as, 293 force majeure and, 300 holdback provisions as, 294 indemnification as, 300–301 inducement clauses as, 301 likeness approval as, 301 major, 291–298 merger clauses as, 301–302 net profits as, 294–295 pay or play as, 296 publicity as, 303 reserved rights as, 296 residuals as, 292 reversion of rights as, 296 Right of First Negotiation/Last Refusal as, 303–304 royalties as, 292 savings clauses as, 305 security interest as, 305 supporting, 298–306 termination of, 304–305 terms of, 297, 300 third party beneficiary in, 302–303 waivers to, 306 work made for hire and, 297 INDEX Defamation, 276–282 actual malice in, 278–279 defenses to, 279–280 in depiction releases, 171–172 in films, 277–278 gross irresponsibility and, 281 libel as, 276 parody and, 279 of public figures, 278–279 publication of, 277–278 republication of, 278 retraction laws and, 282 slander as, 276 statements of, 276–277 Default-and-cure provisions, 299–300 Deferred compensation, 19, 85 as deal point, 292 under Director’s Services Agreements, 136 under Performer’s Services Agreements, 158 under Producer’s Services Agreement, 126 under Writer’s Service Agreements, 85 Deliverables, 237–238 legal/business, 237–238 physical, 237 Depiction releases, 171–175 defamation in, 171–172 E&O insurance and, 172 invasion of privacy in, 172–173 for minors, 173–174 notice releases and, 174–175 right of publicity in, 171 Derivative works, 251 Development, of film properties, 6, 8–9 See also Copyright law; Idea rights acquisition as part of, copyright protection as part of, 50 idea rights as part of, 51–59 Option Agreements and, 77 DGA See Directors Guild of America Directors See also Director’s Services Agreements DGA and, 131 Director’s Services Agreement for, 131–140 Directors Guild of America (DGA), 131 MBA for, 136 Director’s Services Agreements, 131–140 accounting for, 136 compensation under, 134–136 conditions precedent in, 132 creative control as part of, 133–134 credits under, 136 delivery standards under, 138 exclusivity as part of, 133 festivals/premieres and, 139 inducement clauses in, 139 net profits under, 140 pay or play under, 137 per diems under, 134 perquisites as part of, 140 post-production services under, 138 publicity under, 137 reimbursements under, 134 Right of First Negotiation/Last Refusal in, 139–140 rights assignments under, 137 termination of, 139 terms of, 132–133 Disclaimers, 223 Discrimination, under employment law, 118 Distribution, 227–241 agreements, as compensation, 19 under copyright law, 14 deals, 228 exclusions in, 230 expenses during, 230, 239–240 fees, 230, 234 film festivals and, 240 financial terms for, 230 forms of, 227–228 gross receipts from, 230 licensing and, 15 residuals and, 230 rights to, 7, 10 subdistributors and, 227 Distribution agreements, 4, 228 See also Distribution Rights Acquisition Agreements deliverables under, 237–238 Distribution Rights Acquisition Agreements, 228, 231–241 Negative Pickup Agreement, 228 Production-Financing/Distribution Agreement, 228 333 334 INDEX Distribution Rights Acquisition Agreements, 228, 231–241 Assumption Agreements as part of, 239 copyrights under, 237–238 credits under, 235 E&O insurance under, 238 Laboratory Access Letter as part of, 239 recoupable expenses under, 234 rights assignments under, 232 territories under, 233 Division of Labor Standards Enforcement (DLSE), in California, 309 DLSE See Division of Labor Standards Enforcement Doctrine of independent creation, 260 Documentaries, fair use in, 188 Documentary Filmmakers’ Statement of Best Practices in Fair Use, 188 “Doing business as” (d.b.a.) certificates, 27 Droit moral See Moral rights Duration of works, for copyrights, 250, 268–269 E Employment law, 307–318 See also Independent contractors discrimination under, 118 employer responsibilities under, 312–313 IRS and, 309 for minors, 119, 314–318 during pre-production phase, compliance with, 118 taxation under, 308 work status under, 308 E&O insurance See Errors and Omissions insurance Equity investments, 43 in LLCs, 43 Errors and Omissions (E&O) insurance, 38 artwork licenses and, 196–197 under Composer’s Services Agreements, 215 depiction releases and, 172 under Distribution Rights Acquisition Agreements, 238 Escrow accounts, 34 Executive producers, 123 Exhibitors, 229 Express contracts, 287 Extension payments, under Option Agreements, 76 Extras, 171 notice releases and, 174–175 under SAG, 171 F Fair use categories of, 256–257 under copyright law, 176, 187–188, 196, 256–259 in documentaries, 188 legal determinations of, 257 transformative determinations for, 187, 257 False light, 274–275 See also Defamation Favored-nations clauses as deal point, 293 in Performer’s Services Agreements, 166 Fees attorney, 35 distribution, 230, 234 licensing, as compensation, 19 rental, 19 for shooting permits, 179–180 subdistribution, 230 Film(s) defamation in, 277 video v., Film Clip License Agreement, 219–221 copyrights under, 220 credits under, 220 rights assignment under, 219–220 Film clips, 217–221 Film Clip License Agreement for, 219–221 quitclaim licenses for, 218–219 Film festivals Director’s Services Agreements and, 139 distribution and, 240 Producer’s Services Agreement and, 129 Film properties See also Screenplays under copyright law, 14–16 financing of, 8, 41–47 Financing, 8, 41–47 See also Loans; Promissory notes; Securities laws under contract law, 18–19 with co-production agreements, 41 through credit cards, 41 equity investment as, 43 through loans, 41, 42 “out of pocket,” 42 through promissory notes, 42–43 securities laws and, 43–45 INDEX First Amendment (U.S Constitution) life story rights and, 95 right of publicity and, 272 Fixed compensation, 19, 81, 85 caps on, 129–130 as deal point, 292 under Director’s Services Agreements, 135 under Producer’s Services Agreement, 126 under Screenplay Purchase Agreements, 81 under Writer’s Service Agreements, 85 Force majeure (acts of God), 128, 139, 160–161 deal points and, 300 Form contracts, 3–4 General partnerships, 27–28 duties under, 28 for joint authorship of screenplays, 68 liabilities under, 28 Gilliam,Terry, 185 Gross receipts, 230 Gross rentals, 230 in Producer’s Services Agreement, 124, 129 Injunctions, 290, 302 Insurance, 37–39 “additional insureds” as part of, 38 completion bonds, 39 E&O, 38 general liability, 38 location agreements and, 183 packages, 38 unemployment, 308 Worker’s Compensation, 38 Intellectual property law, 12–13, 19–21 See also Contract law, for films; Copyright law definition of, 13 joint authorship of screenplays under, 68 Internal Revenue Service (IRS), 308–309 International Alliance of Theatrical Stage Employees (IATSE), 119, 141 Intrusion upon seclusion, 273–274 Invasion of privacy, 105 in depiction releases, 172–173 Investment contracts, 44–45 IRS See Internal Revenue Service H J Holdback provisions, 294 Joint authorship, of screenplays, 63–69 See also Writer’s Collaboration Agreements under copyright law, 67, 69, 261–263 general partnerships for, creation of, 68 intellectual property under, 68 joint ventures and, creation of, 68 LLCs and, 68 value reduction from, 261–262 Writer’s Collaboration Agreements for, 64–69 Joint ventures, 29 for joint authorship of screenplays, 68 G I IATSE See International Alliance of Theatrical Stage Employees Idea rights, 51–59 See also Nondisclosure agreements NDAs and, 51–53 “novelty” requirement for, 56–57 Submission Releases and, 52–53 Implied contracts, 287 Independent contractors, 118–119, 308 in California, 309–310 in New York, 310–312 taxation for, 308 for Unemployment insurance, 308 work made for hire and, 263 for Worker’s Compensation insurance, 308 Inducement clauses, 31–32 in Composer’s Services Agreements, 215 in Crew Services Agreements, 146 as deal point, 301 in Director’s Services Agreements, 139 in Performer’s Services Agreements, 162 K The Kid, 315 L Laboratory Access Letters, 239 Law suits, 35–36 Laws See Child labor laws; Contract law, for films; Coogan Law; Copyright law; Employment law; Intellectual property law; Law suits; Privacy laws; Retraction laws; Securities laws 335 336 INDEX Libel, 105, 276 See also Defamation Licensing See also Artwork licenses; Music licensing artwork, 190–197 compensation and, 19 under copyright law, 15 of copyrights, 266–267 distribution as part of, 15 duration of, 15 music, 203–216 in specific mediums, 15 territorial, 15 Life Rights Consent Agreements, 94, 97–100 compensation under, 99–100 credits under, 100 grantors for, 97–98 producers rights under, 97–98 releases and waivers under, 94, 98–99 reserved rights under, 98 Life story rights, 94–100 See also Life Rights Consent Agreements definition of, 94 estates and, 96 First Amendment and, 95 Life Rights Consent Agreements for, 94 state laws and, variation among, 96 Likeness approval, 301 Limited liability companies (LLCs), 25–27, 30–31 Articles of Organization for, 30 equity investments in, 43 features of, 30 for joint authorship of screenplays, 68 Limited partnerships (LPs), 25–27, 29 Line producers, 123 Literary Property Acquisition Agreements, 88–93 compensation under, 90 copyrights under, 89–90 credits under, 91 first negotiation/last refusal under, 91 producer’s rights under, 89 publicity under, 92 reserved rights under, 90 reversion of rights under, 91 Screenplay Purchase Agreement v., 88 Litwak, Mark, Loan-out companies, 31–32 inducement clauses and, 31–32 Loans personal, 42 secured, 42 unsecured, 42 Location agreements, 180–183 compensation under, 182 credits and, 183 insurance as part of, 183 trade dress under, 181 Locations, 177–183 See also Location Agreements location agreements for, 180–183 nuisances on, 178–179 privacy laws and, 178 shooting permits for, 179–180 trespass to chattel at, 178 trespass to land and, 177–178 Low-budget agreements, under SAG, 151–152 Lucas, George, 254 M Mandatory trust funds, under child labor laws, 315–316 Master Bargaining Agreements, 120 for DGA, 136 Master Use Licenses, 204–205 in Music Licensing Agreements, 208 MBA See Minimum Basic Agreement Merchandising rights, under Literary Property Acquisition Agreement, 89 Merger clauses, 301–302 Miller, Philip H., Minimum Basic Agreement (MBA) under SAG, 150 under WGA, 69–70 Minors depiction releases for, 173–174 under employment law, 119 Modified low-budget agreements, under SAG, 152 Moral rights, 282 under Performer’s Services Agreements, 159–160 Morals clauses, in Performer’s Services Agreements, 164 INDEX Music licensing, 203–216 See also Composer’s Services Agreements; Music Licensing Agreements AFM and, 211 ASCAP and, 205 BMI and, 205 for commissioned works, 210–211 Composer’s Services Agreements for, 211–216 for compositions, 203 copyrights for, 203–205 Master Use Licenses, 204–205 Music Licensing Agreements for, 207–211 Performance Licenses, 204–205 performance rights societies for, 204–205 for prerecorded songs, 203–206, 209 for recordings, 203–204 for rerecording, 206–207 royalty-free music and, 210 SESAC and, 205 Synchronization Licenses, 204–205 Videogram Licenses, 204–205 Music Licensing Agreements, 207–211 credits under, 209 Master Use License in, 208 Performance Licenses in, 208 Synchronization Licenses as part of, 207 Videogram Licenses in, 208 N NABET-CWA See National Association of Broadcast Employees and TechniciansCommunication Workers of America National Archives, 218, 221 stock footage from, 218, 221 National Association of Broadcast Employees and TechniciansCommunication Workers of America (NABET-CWA), 141 NDAs See Nondisclosure agreements Negative Pickup Agreements, 228 Net profits, 19 as deal point, 294–295 under Director’s Services Agreements, 140 under Performer’s Services Agreements, 163–164 under Producer’s Services Agreement, 130 under Writer’s Services Agreements, 87 New York child labor laws in, 316–317 Child Performer Education and Trust Act in, 317 independent contractors in, 310–312 Non-accredited investors, 45 Nondisclosure agreements (NDAs), 51–53, 55–56 confidentiality under, 55 costs of, 57 Notice releases, 174–175 Nuisances, as property harm, 178–179 O Option Agreements, for screenplays, 74–77 development during, 77 duration of, 76 exercising an option during, 74, 76 extension payments under, 76 option prices within, 76 producer’s rights under, 75 Screenplay Purchase Agreements and, 74–75, 81–82 writer’s rights under, 75–76 Option Extension Payments, 81 Option prices, 19 in Option Agreements, 76 P Parody See also Fair use defamation and, 279 of trademarks, 193–194 Pay or play as deal point, 296 under Director’s Services Agreements, 137 under Producer’s Services Agreement, 127–128 under Writer’s Services Agreements, 86 Payments See Compensation PEMEI See “Permit to Employ Minors in the Entertainment Industry” Per diems under Crew Services Agreements, 144 under Director’s Services Agreements, 134 under Performer’s Services Agreements, 159, 163 in Producer’s Services Agreement, 125 Performance Licenses, 204–205 in Music Licensing Agreements, 208 337 338 INDEX Performance rights societies, for music, 204–205 ASCAP, 205 BMI, 205 SESAC, 205 Performers See Actors Performer’s Services Agreements, 149, 155–164 accounting for, 161 approval rights under, 160 availability dates under, 157–158 compensation under, 158–159 credits under, 159 deal memos as part of, 155 favored-nations clause in, 166 inducement clauses in, 162 moral rights under, 159–160 morals clauses in, 164 net profits under, 163–164 options on future services under, 163 per diems under, 159, 163 perquisites as part of, 159 publicity under, 161 residuals under, 158 rights assignments under, 159–161 SAG compliance and, 162–163 suspension of, 161 termination of, 160–161 terms of, 155–157 Perks See Perquisites “Permit to Employ Minors in the Entertainment Industry” (PEMEI), 314 Perquisites See also Per diems under Crew Services Agreements, 147 definition of, 163 under Director’s Services Agreements, 159 under Performer’s Services Agreements, 159 Personal loans, 42 Pick-up shots, 170 Post-production phase, 7, 10 copyrights during, 202 Director’s Services Agreements for, 138 liens during, 202 staffing for, 201–202 Pre-production phase, 6, See also Development, of film properties; Service Agreements Collective Bargaining Agreements during, 120 employment law compliance and, 118 Master Bargaining Agreements during, 120 services agreements as part of, 117 union compliance during, 117, 120 Principal photography, 170 Privacy laws See also Right of publicity false light and, 274–275 hidden cameras/microphones and, 275–276 intrusion upon seclusion and, 273–274 locations and, 178 public disclosure and, 274 right of publicity and, 271–273 violation of, 273–276 Producers See also Producer’s Services Agreement associate, 123 executive, 123 Life Rights Consent Agreements and, 97–98 line, 123 Literary Property Acquisition Agreements and, rights under, 89 Option Agreements and, rights under, 75 Producer’s Services Agreement for, 123–130 Screenplay Purchase Agreements and, rights under, 77–78 Producer’s Services Agreement, 123–130 accounting for, 126–127 compensation under, 126, 129–130 conditions precedent in, 124–125 credits under, 127 festivals/premieres under, 129 inducement clauses in, 124, 129 net profits under, 130 pay or play under, 127–128 per diems as part of, 125 production companies and, 124 publicity under, 127 riders in, 125 rights assignments under, 127 termination of, 128 INDEX Production companies, 6, 8, 24–32 See also Attorneys; Corporations; Distribution agreements; Financing; General partnerships; Insurance; Limited liability companies; Limited partnerships accountants as part of, 36–37 attorneys as part of, 33–35 corporations, 25, 27, 29–30 equity investments in, 43 formation of, 24 general partnerships, 27–28 insurance for, 37–39 joint ventures, 29 as legal person, 24 liability limitations of, 25–26 LLCs, 25–27, 30–31 loan-out companies and, 31–32 LPs, 25–27, 29 NDAs and, 51–53 Producer’s Services Agreements and, 124 Respondeat Superior doctrine and, 26 Service Agreements and, 120–121 sole proprietorships, 27 Production phase, 7, depiction releases as part of, 171–175 locations during, 177–182 on set clearances during, 186 stages of photography during, 170 Production-Financing/Distribution Agreements, 228 Promissory notes, 42–43 definition of, 42 noteholders, 42 Prop rental houses, 195 Public domain, works in, 102 artwork, 196 copyrights for, 102, 252–253 definition of, 252–253 U.S government works as part of, 255 Publicity under Composer’s Services Agreements, 214 under Crew Services Agreements, 145 as deal point, 303 in depiction releases, 171 under Director’s Services Agreements, 137 under Literary Property Acquisition Agreements, 92 under Performer’s Services Agreements, 161 under Producer’s Services Agreement, 127 under Screenplay Purchase Agreements, 80 under Writer’s Services Agreements, 87 Purchase Price Payments, for screenplays, 81 contingent compensation, 81 fixed compensation, 81 Q Quitclaim licenses, 218–219 Quotes, for actors, 166 R Rate Schedules (for WGA), 78–79 Reimbursements under Crew Services Agreements, 144 under Director’s Services Agreements, 134 Rental fees, 19 Reserved rights as deal point, 296 under Life Rights Consent Agreements, 98 under Literary Property Acquisition Agreements, 90 under Screenplay Purchase Agreements, 78 Residuals as deal point, 292 distribution and, 230 under Performer’s Services Agreements, 158 under SAG, 152–153 Respondeat Superior doctrine, 26 Retraction laws, defamation and, 282 Riders, in Service Agreements, 121 in Producer’s Services Agreement, 125 Right of First Negotiation/Last Refusal as deal point, 303–304 in Director’s Services Agreements, 139–140 Right of publicity, 271–273 definition of, 271 duration of, 271 First Amendment and, 272 infringement on, 272–273 predominant use test for, 273 relatedness tests for, 273 transformative tests for, 273 339 340 INDEX Rights See Approval rights; Copyright law; Copyrights; Distribution, rights to; Idea rights; Life story rights; Literary Property Acquisition Agreements; Merchandising rights; Option Agreements, for screenplays; Reserved rights; Right of First Negotiation/Last Refusal; Screenplay Purchase Agreements; Separated rights; Television rights;Trademarks;Writer’s Collaboration Agreements;Writers Guild of America;Writer’s Services Agreements Royalties, 19 as deal point, 292 Royalty-free music, 210 Rule 504 (security law exemption), 46 Rule 505 (security law exemption), 46 Rule 506 (security law exemption), 46 S SAG See Screen Actors Guild SAG Minimum Basic Agreement, 150 Savings clauses as deal point, 305 under Writer’s Services Agreements, 86 Scènes faire (scenes for action), 255–256 Screen Actors Guild (SAG), 6, 149–155 See also Performer’s Services Agreements definition of, 150 extras under, 171 low-budget agreement under, 152 MBA under, 150 modified low-budget agreement under, 152 Performer’s Services Agreements and, 162–163 residuals under, 152–153 security interest under, 154 short film agreement under, 151 signatories to, 150, 153–155 student film contracts under, 151 ultra-low budget agreement under, 151–152 Screenplay adaptations, 88 Literary Property Acquisition Agreement for, 88–93 Screenplay clearance reports, 104–106 chain of title in, 105–106 copyright issues in, 105 invasion of privacy issues in, 105 libel issues in, 105 trademark infringement in, 106 Screenplay Purchase Agreements, 74–75, 77–82 accounting under, 79 compensation under, 78–79, 81 copyrights under, 78 credits under, 80 Literary Property Acquisition Agreement v., 88 Option Agreements and, 74–75, 81–82 producer’s rights under, 77–78 publicity under, 80 reserved rights under, 78 reversion of rights under, 79 for WGA members/non-members, 80 Screenplays, 61–71, 73–100 See also Life story rights; Option Agreements, for screenplays; Purchase Price Payments, for screenplays; Screenplay adaptations; Screenplay clearance reports; Screenplay Purchase Agreements; Screenwriters;Writer’s Collaboration Agreements;Writers Guild of America acquisition of, 8, 73–82 adaptations, 74, 88 clearance reports for, 104–106 joint authorship of, 63–69 life story rights for, 94–100 Option Agreements for, 74–77 Purchase Price Payments for, 81 Screenplay Purchase Agreements for, 74–75, 77–82 sole authorship of, 61–63 U.S Copyright Office and, 62–63, 69 WGA and, 69–71 Screenwriters See also Joint authorship, of screenplays;Writer’s Collaboration Agreements;Writers Guild of America;Writer’s Services Agreements Option Agreements and, interests under, 75–76 reserved rights for, 78 Writer’s Services Agreements for, 82–87 Scripts See Screenplays Second-unit photography, 170 Secured loans, 42 INDEX Securities laws, 43–45 accredited investors under, 45 compliance with, 47 definitions under, 44 fraud and, 46 investment contracts and, 44–45 non-accredited investors under, 45 offering under, 46–47 registration exemptions to, 45–46 Rule 504, 46 Rule 505, 46 Rule 506, 46 Security interest as deal point, 305 under SAG, 154 Separated rights, 70 WGA and, 70 Service Agreements, 120–167 Crew Services Agreement, 131, 141–147 Director’s Services Agreement, 131–140 major elements of, 120–121 Performer’s Services Agreements, 149, 155–164 Producer’s Services Agreement, 123–130 production companies and, 120–121 riders in, 121 Services contracts, 117 SESAC See Society of European Stage Authors and Composers Sets, for films, 185–197 See also Artwork licenses artwork licenses for, 190–197 copyrights on, 187–190 prop rental houses and, 195 trademarks on, 192–193 Seven, 259 Shooting permits, 179–180 fees for, 179–180 requirements for, 179–180 Short film agreements, under SAG, 151 Short form copyright assignment, 111–112 Short Form PA (for copyrights), 108–109 Signatories to SAG, 150, 153–155 to WGA, 69–70 Slander, 276 See also Defamation Society of European Stage Authors and Composers (SESAC), 205 Sole proprietorships, 27 d.b.a certificates for, 27 Star Wars, 254, 257 Step deals, 82 Stock footage, 218, 221 companies for, 218 from National Archives, 218, 221 Student film contracts, under SAG, 151 Subchapter S corporations, 29–30 Subdistributors, 227 Submission Releases, 52–54 costs of, 57 provisions of, 54 Synchronization Licenses, 204–205 in Music Licensing Agreements, 207 T Taxation for C corporations, 30 under employment law, 308 for independent contractors, 308 Television rights, under Literary Property Acquisition Agreement, 89 Termination agreements, 66 Trade dress, 181, 192 Trademark clearance letters, 194–195 Trademarks clearance letters for, 194–195 on film sets, 192–193 informational uses of, 192 under Literary Property Acquisition Agreement, 89 parody of, 193–194 in screenplay clearance reports, 106 tarnishment of, 185–186, 193 Trespass to chattel, 178 Trespass to land, 177–178 12 Monkeys, 185 U Ultra-low budget agreements, under SAG, 151–152 Unemployment insurance, 308 for independent contractors, 308 Unions See also American Federation of Television and Radio Artists; Crew Services Agreements; Directors Guild of America; International Alliance of Theatrical Stage Employees; National Association of Broadcast Employees and Technicians-Communication Workers of America; Performance rights societies, for music; Screen Actors Guild;Writers Guild of America 341 342 INDEX Unions (Continued) AFTRA, 119 Collective Bargaining Agreements with, 120 DGA, 131 IATSE, 119 Master Bargaining Agreements with, 120 NABET-CWA, 141 during pre-production phase, compliance with, 117, 120 SAG, 6, 149–155 WGA, 9, 62 Unsecured loans, 42 U.S Copyright Office, 15 See also Copyright law; Copyrights registration through, 106–109 screenplays and, 62–63, 69 searches through, 103 Short Form PA, 108–109 U.S Customs Service, 107 V Video digital, 41 film v., Videogram Licenses, 204–205 in Music Licensing Agreements, 208 Volunteer Lawyers for the Arts Organization, 35 W Waits,Tom, 206 Waivers in artwork licenses, 192 to deal points, 306 WGA See Writers Guild of America Woods, Lebbeus, 185 Work made for hire, 263–265 copyright assignment clauses for, 265 copyrights and, 263–265 deal points and, 297 definition of, 263–265 duration of, 265 independent contractors and, 264 Worker’s Compensation insurance, 38, 308 for independent contractors, 308 Writers See Screenwriters Writer’s Collaboration Agreements, 64–69 ownership of copyrights under, 65–66 termination agreements for, 66 WGA and, 67 Writers Guild of America (WGA), 9, 62 credits policy for, 70–71 MBA and, 69–70 Rate Schedules for, 78–79 Screenplay Purchase Agreements and, for members/non-members, 81 screenplays and, 62, 69–71 separated rights and, 70 signatories to, 69–70 Writer’s Collaboration Agreements and, 67 Writer’s Services Agreements, 84–87 compensation under, 85 credits under, 87 delivery period as part of, 83 net profits under, 87 option period as part of, 83 pay or play under, 86 product forms in, 83 publicity under, 87 reading period as part of, 82–83 right of first negotiation under, 86 savings clause under, 86 step deals as part of, 82 Writing partnerships See Joint authorship, of screenplays