NewEnglandFilm.com

I arrived at the June meeting of the Association for Independent Video and Filmmaker’s Boston Salon a bit late and so had to grab the slightly ripped Naugahyde chair behind a desk in the back. Either the legs were cut off or there had been a manufacturing defect, because my knees boxed my ears, and my head barely peered over the desk in front of me after I landed in the seat. I’d missed the pot-luck dinner but that was OK, the reason that I’d come was to listen to a presentation by Sandra Forman, an experienced entertainment lawyer practicing in Boston. The presentation and Q&A session ranged over a number of topics but always seemed to come back to Rights and Releases. So about a month later, when Ms. Forman was kind enough to allow me to interview her, I focused the majority of my questions in these two topics.

As a seasoned attorney, Ms. Forman is very deliberate in her use of language. I have tried to preserve key phrases that were mentioned in the interview when they seemed especially important. Both as a courtesy and in order to insure that the information contained in this piece is accurate, Ms. Forman has reviewed this article prior to its publication.

Throughout the Salon meeting and our interview, it became clear that there are few helpful generalizations for an independent producer when it comes to questions of law. A lawyer’s knowledge, experience, and judgment is applied to a specific situation, problem, or opportunity. This realization led me to my first question.

NEF: At what point in a film production process might an attorney get involved in a project?

SF: Right at the beginning. Of course, this depends on the function of the lawyer involved in the project. Some lawyers get involved early in the development process. They actually broker the deal on behalf of the writer or producer. In this scenario the attorney is serving as the "agent" for the project. A producer might come forward with a screenplay or a treatment and the attorney works to make a deal with a production company, studio, or other prospective funder for the project.

If the attorney is acting as a lawyer qua lawyer, that is, not as an agent, then he/she might get involved in the development and financing stage but in a somewhat different capacity. Here it is important to note that there are two kinds of lawyers that might help the producer, the entertainment lawyer and the business lawyer. Often times with the assistance of the entertainment attorney, the business lawyer will put the financing package together, not actually secure the financing, but structure the offer for investors. There are a multitude of complex requirements from the SEC, Blue Sky Laws, and other dictates that make the structuring of a partnership or financial offering best handled by an experienced business lawyer.

The entertainment lawyer will then handle rights acquisition, pre-production contract negotiations for talent, crew, equipment, and other contractual components of the pre-production and production phase of the process. The entertainment lawyer is especially important in protecting the filmmaker’s interest during the negotiation of the distribution deal after the film is completed.

NEF: As an independent filmmaker without financing in place, how does the producer compensate the attorney for the services they perform?

SF: It is best if the producer has some resources that he/she can offer the attorney when the working relationship is initiated. Some attorneys will work as consultants, reviewing specific documents or preparing specific contracts. Some will work out percentage deals with a client, or a cash and percentage deal. If the lawyer feels strongly about the content and viability of the project, he/she might elect to take an executive producer position which would give them some ownership in the project and also allow them to include their fees in the overall budget. Many lawyers will set a flat fee for producers working on low budget films. There is usually some willingness to accommodate independent producers in order to establish a working relationship that will grow as the producer’s career grows.

NEF: You mentioned the acquisition of rights. What are some forms of rights that a producer might wish to secure at the beginning of a project?

SF: Rights and releases are other areas where consultation with an experienced entertainment lawyer is especially important. The principle rights that need to be secured are the rights to the underlying work. These rights might be the right to use someone’s "life-story," the right to adapt some kind of existing literary material like a book or a play into a film; and depending on the filmmaker’s role in the project, securing the right to the screenplay itself for a narrative film from an original script. Most of the agreements to obtain these rights are structured as an "option/purchase agreement." The producer pays the owner of the rights a specified sum of money in exchange for the option to purchase the material within a designated period of time. At the end of that period, the producer either purchases the motion picture rights to the material for the amount agreed upon in the option/purchase agreement, or the rights revert back to the owner.

NEF: What is a release and what kind of releases are there?

SF:A release is an explicit or implied form of permission to use something that someone else owns in your film. In a documentary production, there are generally four kinds of releases: the appearance release, material release, music release, and location release.

• An appearance release is permission to use a person’s image, voice, performance — what they do and say, in your film. This can be a written release or a verbal release that is included at the beginning of an on-camera or audio interview.
• A material release gives you the right to use still images, archival or personal footage, the text of documents, or audio recordings in the film that you are making.
• A music release is a permission from the music publisher to use a particular piece of copyrighted music in you film. If you are using already recorded music you also need permission from the record label for the use of the sound recording.
• Finally, a location release give you permission to use a particular site for filming. This can be either a public or private location.

Producers working in narrative generally do not need appearance releases from their actors as this is structured into the contract that the producer signs with the talent appearing in the film. Even if the actors are working for free, it is important for the producer to have a "work for hire agreement" with the actors indicating that they have no ownership rights or interests in the final film project. Other elements included in the contract are the particular services of the actor: the time period that the person is going to work; their screen credit; and their compensation. The contract will also secure the right to use the actor’s name, image, and biographical information in any promotional or advertising on behalf of the film.

Securing rights and releases protects the producer from being sued for rights infringement. Some producers don’t get appearance releases when making documentaries. This can often be no problem. In most cases people know they are being filmed and by choosing to appear in the film they are giving their consent. A particular danger is when someone does not know he/she is being filmed and is inadvertently presented in a "false light." This is a legal term for having a "fact" connected or implied about someone that isn’t really the truth. For example – in a documentary about AIDS, narration could inadvertently connect a statement about a person with AIDS to a particular person walking down the street, and that person, if he or she does not have AIDS, may have a claim that he/she was depicted in a "false light." The producer would then have a problem.

I encourage producers to be cautious, to have contracts, to secure rights and get releases in order to avoid the threat of lawsuits later.

Sandra is a well known Boston entertainment attorney who specializes in working with independent producers, especially documentary makers. She worked for WGBH for five years and has had her own practice for the last ten. A few of the Boston area producers she has represented are Blackside Inc., and Marty Ostrow, and Laurel Chiten.  If you wish to contact her for legal counsel, call her at 617-542-0050.

Sandra Forman has also agreed to hold three more legal "clinics/seminars" at the Association of Independent Video and Filmmakers’ local meetings on August 6, October 8, and December 10 at the Center for Independent Documentary at 1608 Beacon Street in Newton, Massachusetts. For more information or to RSVP, contact Fred Simon at 781-237-8589 or email fsimon@aol.com