The power of contracts
Before you begin shooting, protect your film with formal agreements that will prevent major miscommunications.
CONTRACTS & AGREEMENTS
Filmmakers need to understand and sign several written agreements that are enforceable by law.
A legal document that outlines the purpose, formation, and rules of operation, LLC’s operating agreement ensures that everyone is on the same page. It helps minimize disputes and also allows you to set up your own terms and guidelines—e.g., profit sharing—for issues that would otherwise be subject to state laws (aka default rules).
A contract that outlines specific terms, including what is being sold—a script, a book, a play, a short story—the amount for which it is being sold, and how it can and cannot be used is called a rights purchase agreement. The buyer will likely want full control of the purchase, and the seller will have to stipulate what she is and is not comfortable relinquishing.
Depending on the nature of your film—and the way subjects are portrayed—you may want legal protection against potential lawsuits on defamation (false statements), rights of publicity (how someone controls the commercial use of their identity), and invasion of privacy (publicizing derogatory facts that a “reasonable person” would find highly offensive). You may think your film can’t possibly cause controversy, but producers and distributors may still insist on life rights.
An option agreement is a time-bound contract, which prevents others from buying your product and outlines a window for purchaser decision making. A potential buyer is essentially renting your product, keeping it off the market and simultaneously weighing whether to fully commit. If, at the end of the agreement, the purchaser passes, you’re free to shop your product elsewhere. If the purchaser wants to retain rights, you’ll enter into a rights purchase agreement. Either way you’ll make some money.
If you commission a writer to create successive drafts for a film screenplay in return for set payments—and possibly a share of film profits—you will need a signed writer’s agreement. This agreement will outline the writer’s services and incorporate all terms, conditions, rules, policies, and guidelines.
Wealthy independent filmmakers are an anomaly; everyone else needs funding. Options include loans (personal or from lenders); credit cards (relatively easy but not always prudent); crowdfunding (beware SEC requirements); or borrowing from friends and family. Filmmakers can also offer equity in their production, and entities can seek fiscal sponsorship from tax exempt organizations.
Every single person—the director, the cinematographer, the producer, the associate producer, the grip, the caterer—who works on your film needs an agreement outlining their rights and responsibilities. You’ll also need location agreements that stipulate when you can use a specific venue (day and night? March or also April?) and if there are rules to be followed. The same goes for music—can you use a song in the opening of your film, at any point, or just during the credits? Each agreement must also state the price being paid.
Filmmakers need legal agreements to photograph, film and actually use a cast member’s voice, image and performance in their movie. A cast member can be a world renowned actor or a relatively unknown interview subject in a documentary. Signed actor release forms should be secured before you start filming; these agreements stipulate that you acquired the rights to use the signee’s “image and likeness” when you screen and distribute your film. Promotional rights allow you to use a cast member’s “image and likeness” for publicity, in promotional materials like posters, trailers, and merchandise.
Crew Above the Line
The people tasked with making the budget and overseeing the creative content are considered crew above the line.
- As creative lead, the director oversees and implements a film’s entire artistic vision, interpreting a script, setting a tone, and directing actors, among other tasks.
- The person who handles a film’s business side, the producer raises money, manages budgets, hires cast and crew, and leads pre- and post-production work.
Crew Below the Line
Everyone working on the film besides the director and producer are considered crew below the line. The myriad cast of characters who help a film get made, ensuring that everything—from the precise color of an actor’s lipstick to the notes of a specific song—is exactly right. The crew is often broken up into different departments: lighting, sound, costumes, hair & makeup, art, stunts & special effects, and transportation, among others.
- The lighting technicians make sure things don’t go dark–they assemble, arrange, position, program, monitor and fix all film lighting equipment.
- The sound technicians assemble, operate and take care of recording, amplifying, mixing, and sound equipment.
- The script supervisor works closely with the director, keeping things moving and ensuring that everything—people and props—is in its right place.
- The line producer oversees operations and logistics, from pre- to post-production. Among other tasks, this person manages budgets, schedules shoot dates, acts as a liaison between crew and producers, stays on top of deadlines, and tracks distribution needs.
- The art director helps set up a film’s overall gestalt, creating sets and ensuring a specific aesthetic.
- The hair stylist is in charge of all coiffures and can spend hours fashioning fancy bouffants or ensuring an actor looks down and disheveled.
- The makeup artist applies cosmetics to the actors, making them appear flawless, aging them twenty years or transforming them into someone totally unrecognizable.
- The post-production editor works with the director after all the scenes are shot, refining and assembling footage to create a seamless story.
- The composer is the person who writes all of the film’s original music (the score).
Filmmakers should not shoot on any private property—an inner city studio apartment or a French chateau—without specific permission. These outline specific dates and times when shooting will occur; the price for the property rental; and whether the filmmaker can make alterations. The person signing the location agreement must be authorized to act on the property owner’s behalf or your arrangement will be shot.
Screenwriters write—or rewrite—all the content in a film, creating the dialogue, characters, and storyline. They need an agreement that outlines the specific services being performed, the timeline for deliverables, the payment schedule, and how they’ ll be acknowledged in the screen credits. The agreement will likely include a “work for hire” clause; this makes it clear that the writing produced for the film is owned, and copyrighted, by the filmmaker.
Unless it is part of the public domain, you must make sure that you’ve obtained the proper rights to any music used in your production–whether it plays softly in the background of a transition scene, is an immediately recognizable Billboard chart topper, or is something you specifically commission (an original composition). Music, like other art, is copyrighted, and filmmakers must obtain permission to use it in their work. There are two different music licenses: a sync license allows usage of specific music’s compositional elements while a master use license enables use of a specific sound recording. Both ensure that copyright owners are compensated for their work—and that filmmakers are protected from infringement claims.
COVID-19 has significantly changed the world of work for nearly every industry. Because most, if not all, filming happens in person, contracts may need to include two specific clauses—force majeur clauses and material adverse effect clauses—which relieve parties of their liabilities or obligations under certain circumstances. Filmmakers may also need to consider back to work agreements, which are ways to keep a set safe for returning crew, while balancing the close contact required for many parts of a film production.
* No attorney-client relationship has been created by your access to this website. This website does not provide legal advice and the Filmmakers Legal Clinic is not acting as your attorney.