
Making an independent film is exciting. You’re creating something wonderful to share with the world, and working with other brilliant people to make your dream a reality. But it’s also full of potential legal headaches. (And possibly also personal relationship headaches.) Here are some tips for security and problem prevention for your film.
- First off, make sure to educate yourself on the aspects of your film that could get you into legal trouble. This site can get you started, but diving into some of the resources referenced on the Books and Trainings page on this site would be even better.
- Also, no matter how small your project is, you need to think about the legal implications of your work and the copyrights that you need to acquire from your cast and crew. Attorneys Michael C. Donaldson and Lisa A. Callif say in a video for Film Courage, even if you are just making a film in the back yard with your friends you need to be getting them to sign releases for their work. But also if you’re expecting to go to film festivals, and especially if you ever intend to do any type of distribution, even if it’s just video on demand, you should both do the basic work of creating an intellectual property chain of title and also consider talking to an attorney. Basically, any time someone is doing work for you, any time you are using someone else’s ideas (even if those people are deceased), or you or someone else doing work for you is intent on keeping rights to a creation, you really should consider getting a lawyer.
Entertainment attorney Dinah Perez gives the following four tips in her article “Protecting Your Ideas, Treatments, and Screenplays”:
- Don’t use oral agreements, or only use them to the extent that you absolutely cannot avoid it. Oral agreements are legal, but they’re incredibly difficult to back up legally without a written agreement. It is better to make sure that everything is in writing so that all parties understand their obligations and there is no confusion.
- Start making decisions about the film and codifying control of the different aspects of the film in contracts early on. This will avoid fights and wrangling (possibly of the legal sort) in the future.
- Don’t tell a lot of people about your project or ideas until you are ready to start filming. Do not tell your idea to a producer at a party. This is also true once your film is basically in the can. Be very careful about having all protections for your film in place, including copyrighting your film, before you screen it. Lots of people are out for their own goals, and you can’t trust everyone’s goodwill. Even if you want to trust in the basic goodness of all, in this case a better tactic would be to trust no one.
- Take extra precautions with regards to secrecy if you are pitching your idea to a production company or studio. According to attorney Perez, if a writer is pitching an idea to a producer, the writer should make sure that they have a set appointment to talk about the idea privately, and follow up with a letter outlining any agreements that were made in the meeting. Also, the writer should ask the producer not to divulge the idea to anyone else without the permission of the writer (since ideas are not copyrightable). Also, she notes that writers should be very careful about signing releases to production companies or studios for their idea. The writer may often find that the release will allow the studio to do anything they like with the idea without financial compensation. It may be better to have your idea submitted by a lawyer to avoid this sort of situation.
Director Faith Fuller offers the next three tips in the article “Legal, Consent and Copyright Issues For Documentary Filmmaking”:
- Make sure that any ambient music in a public location like a coffeeshop or on a car radio is cleared. Either that, or make sure that there isn’t any unlicensed music playing in your scene.
- If you don’t want to get in trouble for copyright infringement, the safest course of action may be to create all of your own content.
- Make sure that you get permission before filming on private property. The best strategy is to get a signed location release.
And the next three tips come from a couple of articles from veteran entertainment attorney Mark Litwak:
- Attorney Litwak notes that even if you do create all of your own content, be especially careful that your fictional characters do not resemble living persons. Also, when your characters are your own creation, add a disclaimer so that viewers will not be confused. Please read his article “Self-Defense for Filmmakers”, he gives a lot more information with regards to rights of privacy and defamation and the portrayal of public vs private figures.
- He also notes that you should have an attorney go over your script to clear it, basically to examine it for any potential liabilities.
- And he points out that film productions would do well to get errors and omissions insurance. This is basically a catchall insurance for mistakes with regards to multiple intellectual property issues, from violating laws surrounding copyright, right of publicity, right of privacy, and defamation, along with unwarranted trademark use. Most distribution companies in North America will require E&O insurance before doing business with a filmmaker. Of course, this only covers accidental infringements and not intentional violations. Be aware that without this insurance, the attorney’s fees and defense for an infraction could cost a career-ending amount of money. Please see his article “Attention, Filmmakers: Here’s What You Need to Know About Malpractice Insurance” for more information. In addition, he provides a sample questionnaire for errors and omissions insurance on his site.
- Be very careful about using public domain characters, as some characters are in multiple works over a long period of time. For example, the estate of Arthur Conan Doyle recently sued over the use of the Sherlock Holmes character in the Netflix film “Enola Holmes”. The issue is that some of the older Sherlock Holmes books are in the public domain, while the newer ones are not. The estate argued that the characteristics that Holmes displays in the newer, still-copyrighted works were on display in the “Enola Holmes” film. See the article ‘“Enola Holmes” and the Case of the Overreaching Copyright Owner’ from attorney Aaron Moss for a detailed rundown.
- And finally, if you do get a cease and desist letter, Public Domain Sherpa gives some tips for dealing with it. Basically, don’t panic and definitely don’t ignore it. And you may need a lawyer.
I am sure that I missed some tips and tricks for protecting your film. Please check out the articles and / or books in the Relevant Links section for more fortifications for your film project.
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