Entertainment Attorney Danny Andrews Helps Indie Filmmakers Avoid Common Mistakes

FIVE MISTAKES EVERY INDIE FILMMAKER SHOULD AVOID

As an entertainment attorney in Los Angeles, I get countless emails, questions, and other inquiries from filmmakers, about how to start their own “indie” film company or produce their own films.  As an initial matter, as an entrepreneur myself, I commend people who have the courage to create their own opportunities, instead of waiting for opportunity to knock…once.  However, over the years I’ve seen people make the same mistakes over and over again.  The underlying misconception is that “indie” somehow means “unconstrained” and thus that an indie filmmaker can cut certain corners.  I actually believe that it is quite the contrary.  Not only are many of the same legal issues present with an “indie” film as with a “major” but there are also certain issues that are more prevalent, such as deferred compensation and ownership, which can get murky in the “indie” scenario and that can ultimately determine whether the film will be exploited.  With that said, I’ve put together this list of 5 common mistakes I’ve seen filmmakers make, in hopes that you can avoid making them.  By no means is this document intended to serve as an exhaustive list of the mistakes or legal issues that might arise in the filmmaking process nor does it mean that your project will be a failure if you make any of the mistakes I warn against below.

    

1. DON’T START WORKING ON YOUR PROJECT, ESPECIALLY WITH ANOTHER PERSON, WITHOUT FIRST PROPERLY SECURING YOUR INTELLECTUAL PROPERTY RIGHTS.  Failing to properly secure your intellectual property rights may be the biggest mistake of them all.  I’ve found that many filmmakers don’t truly understand the value of their intellectual property, or think that theft of their idea won’t happen to them, or just decide not to secure their rights because they think it is too expensive (Note: it costs $35 to register your script online).  They tell other people their story ideas, let people read their scripts, etc., all without first registering it with the Copyright Office.  I often hear, “I haven’t registered with the Copyright Office, but I did file with the WGA.“  Filing with the WGA and registering your work with the Copyright Office is not the same thing.   While filing with the WGA can protect you in some instances, such as in a writing credit dispute where you sell something that gets rewritten and you don’t receive the appropriate credit, WGA filing alone doesn’t help you in a copyright infringement suit under the U.S. Copyright Act.  In fact, you cannot bring a copyright infringement suit under federal U.S. Copyright law unless the work is registered with the Copyright Office.  In addition to allowing you to bring a suit for copyright infringement in federal court, registering with the Copyright Office also entitles you to significantly higher damages (i.e. money that the infringing party will have to pay you for using your work without your permission) in addition to recovery of attorney fees and other costs, which can start adding up, and which costs have actually prevented copyright owners from suing. 

2.  DON’T ENGAGE OR WORK WITH ANOTHER PERSON OR USE ANOTHER PERSON’S WORK WITHOUT FIRST OBTAINING A WRITTEN AGREEMENT DETAILING THE NATURE OF THE RELATIONSHIP.  It is not uncommon for two or more friends to collaborate on a film project.  One may be a good writer, one may be an idea machine, and one may just have a trust fund.  Collaborating on creative projects can be risky business (Note: This use is not intended as an infringement of any intellectual property rights associated with the film of the same name circa 1983).   The Unites States copyright laws provide that even a small contribution of original material by one person to a work may be enough to render the work a “joint work.”  Absent an agreement to the contrary, this means that you each would own the copyright to the work, which of course may lead to any number of issues when trying to sell or otherwise exploit the film. 

Sometimes, you don’t collaborate with another person, per se, but instead you use something another person has written as the basis of your work (FYI this is known as a “derivative work” and is one of the exclusive rights given to a copyright owner under the U.S. Copyright Act for which you must obtain the copyright owners permission).   For example, I’ve had several clients come to me and tell me that they have read this interesting book and that they have written a screenplay based on the book and now they want to try to sell the screenplay.  My first question is always, did you get permission from the book’s author or copyright owner.  You can just about guess what the typical answer is, so, I’ll spare you.  The mistake of not getting the appropriate permissions can be costly, both in time and money, because in order to exploit your project you will have to pay the copyright owner for the right to use it— that’s assuming that they are even willing to give you the permission.  If they don’t give you permission, you’ve spent countless hours on a project that you can never exploit.  Virtually no one is going to buy a screenplay from you without a clean “chain of title” (i.e. you own or have the exclusive right to exploit the screenplay in its entirety).

3.  DON’T BUY THE COW WHEN A GLASS OF MILK WILL DO.  The process of making a film or any creative work can be a very collaborative process.  Creating a film can also be expensive, so, often times a filmmaker may engage a friend to provide certain services in exchange for backend compensation or percentage of ownership in a film’s proceeds.  To be sure, giving someone 50% ownership of a film to serve as a producer on the film may not seem like a big deal when the film has yet to be made; but it can mean millions of dollars and other logistical nightmares if the film is a hit.  Many filmmakers decide to create partnerships, LLC’s and other entities with their collaborators (i.e. buying the cow) without thinking about the costs (e.g. taxes) and consequences (e.g. diluted ownership interest, splitting of assets upon dissolution) related to forming such entities.  By no means am I suggesting that partnerships and other legal entities don’t have their place in the process, as they may be valuable tools for limiting your liability.  What I am saying is, consider the pros and cons before jumping into these relationships.  For instance, if you want a friend to come on as a producer, a producer agreement or hiring a producer to do the work as a “work for hire” (i.e. the glass of milk) may be just as effective, without giving up ownership rights to the film or incurring other liabilities associated with forming certain legal entities.  As we discussed above, all agreements should detail the nature of the relationships before collaboration begins.  Accordingly, even a “work for hire” or producer agreement should be in writing, and should be clear on key terms, such as ownership, compensation, delivery requirements, etc.  Failure to clearly state the nature of the relationship could render the project a “joint work” or lead to costly litigation.  Can anyone say The Social Network?  (Note: This use is not intended as an infringement of any intellectual property rights associated with the film of the same name circa 2010).

4.  DON’T FORGET THAT THE BIGGER THE DREAM THE BIGGER THE BUDGET. Filmmakers are often very creative people, but many of them aren’t very good with the business-side of things.  Often times I see people that have these elaborate details and dreams about what the film will look like, but haven’t thought about how much it will cost. Whether it’s talent salaries, overnight deliveries of scripts to potential cast members or financiers, insurance, or anything in between, filmmaking is both expensive and time-consuming, which is why a detailed, realistic budget is one of the first things a filmmaker should have in place.  Of course, circumstances may arise that may require the budget to change, but like with any good roadmap, a budget helps to keep the players accountable and on the right track.  In fact, a well-drafted budget can help the process of securing investors much easier because investors will have a clearer understanding of how their money will be spent.  The budget doesn’t need to be fancy, but it does need to be more than a rough estimate of general costs.  A good budget is a comprehensive document that is your roadmap for your entire production process (including pre- and post-production elements).  If numbers aren’t your forte or if you have trouble balancing your own checkbook like yours truly, it may be worth it to bring someone on board to help you create this important document.

5.  DON’T ACCEPT MONEY FROM AN “INVESTOR” WITHOUT AN AGREEMENT CLEARLY DETAILING THE NATURE OF THE “INVESTMENT.”  As we discussed above, filmmaking can be very expensive.  Often times the filmmaker doesn’t have the money to fund the project, so they look to “investors.”   Clients and filmmakers often come to my office and tell me all about how these investors are going to fund their movie.  However, when I ask to see the investor agreements, offerings, and/or private placement memoranda, the filmmakers look at me as though I’m speaking Yiddish.   While I can appreciate the need to secure financing to develop and produce films, filmmakers should never accept money from anyone unless they are clear about the nature of the contribution and what the “investor” expects in return, if anything.  Is it a gift, which doesn’t need to be repaid?  Is it a loan, which requires repayment on a payback schedule?  Or, is it the type of arrangement where the “investor” gives you money in exchange for a share/percentage of future profits?  If it is the latter, then you are entering into a securities transaction.  This is because someone is investing in your project with the hopes of having some share of ownership interest, just like a shareholder of a corporation.  Securities are heavily regulated by federal and state laws, and violating these laws, whether intentionally or not, can result in hefty civil and criminal penalties.  While many templates for these types of security transactions are available online, each deal is different, so, it is never a good idea to enter into such an agreement without the counsel of a knowledgeable entertainment lawyer who understands film finance and securities law implications.

THE LEGAL STUFF:  While I am sure that all of you reading this are savvy and sophisticated enough to know this, my malpractice insurance depends on it, so here goes:  The information provided in this document is not legal advice, but rather general information on legal issues commonly encountered, and does not create any attorney-client relationship between you and Danny Andrews or Danny Andrews, A Professional Corporation.  Any and all information provided by Danny Andrews or Danny Andrews, A Professional Corporation herein is not intended as a substitute for the advise of your legal counsel.  If you have any questions about these materials or any other entertainment or intellectual property matter, please feel free to contact Danny Andrews.  His contact information can be found at www.dannyandrews.com.

Los Angeles Entertainment Attorney Danny Andrews Takes Spanish Course To Better Serve His Spanish-speaking clients

You may or may not know this about me, but I am half Puerto Rican.  In fact, spending my early years with my non-English grandmother, rendered Spanish my first language.  But, as with many things in life, if you don't use it, you'll lose it.  And so it was.  One of my New Year's resolutions was to get better and speaking and writing Spanish.  I'm currently in a Spanish course at a local community college.  My timing couldn't be any better.  In the last month alone, I have had 3 Spanish-speaking clients.  Most recently, a Spanish screenwriter contacted me.  He needed my help getting out of a bad production deal for a film to be shot in El Salvador.  Of course, the deal was in Spanish.  But, with the help of my Spanish comprehension, my dictionary, and a Spanish-speaking mother, I was able to translate the agreement!  I'll spare you the details.  But, I successfully got him out of the bad deal, regain all of his rights in and to the screenplay, and we are now in negotiations with a new Australian film financier to finance the film project.  Good thing they speak English down under.  

As an entertainment attorney in Los Angeles, it is not surprising that more and more Spanish-speaking people are contacting me in need of legal representation.  I want to do my part to make sure that they get the legal help they need.  I am excited about continuing to re-learn spanish and about working with more and  more Spanish-speaking clients.  Check back for  updates on this film project.  And as usual, for more information and updates on this or other activities that I am involved in, and/or if you need legal assistance, please feel free to contact me, Danny Andrews.  My contact information can be found at www.dannyandrews.com.

Entertainment Attorney Danny Andrews Negotiates Lucrative Deal for Lead in Upcoming Major Film

After several weeks of heavy back and forth negotiations, entertainment attorney Danny Andrews has successfully negotiated a lucrative deal for his client in connection with his role as the lead in the sequel to a successful film, which is set to be distributed by the same major that distributed the first movie.

My client who also starred in the first move, in a deal that he was not happy with, contacted my office when he needed the agreement negotiated for the sequel.  This time around he had a successful movie under his belt, fans and some leverage to get a better deal.  Even with this new leverage,  it looked like the deal was not going to happen for a number of reasons that will remain unsaid.  However, after some conversations between myself and the production company, I was able to remind the parties that this movie needed my client in order to be successful.  After all, he was the lead in the first movie and the movie was based on this character's story.  Consequently, the parties came to the table and we worked out a deal.  In fact, I was able to negotiate a payday for my client that was 5 times higher than the initial offer.  The deal, many of the terms of which I cannot share, incorporates guaranteed compensation as well as other compensation tied to a successful theatrical release, DVD sales and other exploitations of the film.  My client, who didn't initially think that my aggressive negotiation tactics would work, called my office the day the agreement was signed and said, "I won't doubt you again...you are the man." I told him, in this business you've got to take calculated risks.  I said, you've got to know your worth and you've got to stick to your guns.

If you are a musician, actor, producer, writer, etc., it is important that you seek legal counsel before entering into any negotiations and/or agreements related to your intellectual property, name and likeness, or for your services, generally.  For more information on how Los Angeles entertainment attorney Danny Andrews can help protect your rights and get you paid, please visit us at  www.dannyandrews.com and contact us with any questions you might have.     

Los Angeles Lawyer Danny Andrews Writes Article Teaching You How To Protect Your Copyrights

As a lawyer in Los Angeles, the heart of the entertainment industry, I get hundreds of calls and emails from artists, writers, and producers alike asking me questions about how to protect their copyrights and other intellectual property.  But many people don't understand a very important provision in the Copyright Act of 1976 known as the "work made for hire" provision.  If you are like most creative people today, you understand that to be successful or to be discovered, you've got to do a lot of the work on the front-end, yourself.  Artists today are serving as their own publicists, managers, marketing team, and even record labels.   

Have you ever hired someone to create a track for, design a website, write an article for your online magazine, or take photographs for your album cover? Or, maybe you’ve done most of the work, but asked someone to write the introduction to the book you plan to self-publish or write the hook to your new song.  Sound familiar?  This happens all the time.  So, here’s the question of the hour:  When you hire someone to do creative work for you, do you legally own the work?   

You may think that because you paid someone to do the work or because you did most of the work and they only added what you deem to be a trifling portion, that you own the copyright exclusively.  But, like George and Ira Gershwin once said, “It Ain’t Necessarily So”.  The general rule of copyright is, the person who creates the work, owns the work.  But this is not always the case.  As with most intellectual property laws, there are exceptions to rules.  To see the full article that I wrote on this topic, please click here: http://dannyandrews.com/?p=128.  

And as usual, for more information and updates on this article or any other matter, please fee free to contact me, Danny Andrews by visiting www.dannyandrews.com

Danny Andrews LA Lawyer Continues To Provide Pro Bono Legal Services To Disadvantaged Communities

This is my second blog entry, but by now, you know that my name is Danny Andrews and I am a lawyer in LA.  While I generally practice entertainment law, you know, copyrights, contracts, trademarks etc., sometimes I provide legal services in other non-entertainment areas.  Such as,  bankruptcy, consumer advocacy and protection, family law, and wills and trusts.  This is just what I did this past Saturday at Tom Mesereau's Free Legal Clinic.  I don't pretend to be an expert in any of these areas of law.  So,  I help advise the clients the best way I can, and when there's an area of law that is not my speciality; well, there's a great team of attorneys at the Mesereau Free Legal Clinic to whom I can refer clients, and vice versa, including Tom Mesereau himself.

After spending more than 3 hours at the Free Legal Clinic, I walked away feeling a sense of accomplishment that made me remember why I became a lawyer.  LA with all its wealth, also has some of the most disadvantaged people in the country.  In just a few short hours, I had helped a woman file for bankruptcy, I'd helped a non-English speaking man resolve certain real property issues, and I'd helped a woman stay in her apartment without fear of losing her government subsidized housing.  So, now I'm hooked and plan to be at the free legal clinic more Saturdays than not.  As if the day wasn't amazing enough, as I was walking out of the clinic, Executive Director, Sophia Harris said to me, "hey, aren't you that entertainment attorney Danny Andrews?" I said, "yes."  And, after a long talk about how we could continue to give back, we decided that I am going to be putting together a free entertainment law information series for the communities that the clinic serves throughout LA.  We are going to teach young and old people alike how to protect their intellectual property, whether it be copyrights, trademarks, music, scripts, and/or other works.  Stay tuned for details.  We'd love to see you there.  

So, if you need free legal advice in any aspect of your life, or if you're an attorney, paralegal, or law student, and want to come by and provide some free legal services, please feel free to stop by.  The clinic is held on Saturdays at Morningside Church located at 8722 Crenshaw Blvd in Inglewood.


And as usual, for more information and updates on this or other volunteer opportunities and activities that I am involved in, and/or if you need legal assistance, please feel free to contact me, Danny Andrews.  My contact information can be found at www.dannyandrews.com.

Entertainment Attorney Danny Andrews To Provide Pro Bono Legal Services at Thomas Mesereau's Free Legal Clinic in Los Angeles

It's important for all of us to give back in ways that we can.  As a graduate of UC Berkeley, I am no stranger to protests and picket lines.  And, although I've protested and picketed with the best of them, I'm not much of a picketer.  I never did like standing around holding heavy objects and screaming at the top of my lungs (this characterization was for dramatization purposes only).  I'm better one-on-one and with helping people resolve their problems by creating strategic plans.  So, I prefer volunteering activities that require me to flex my brain muscles.  Afterall, I, like everyone else in Los Angeles, have a gym membership to help with flexing those other muscles.  Now, I've volunteered at shelters, helped raise money for charities, and even provided pro bono (that's free, for those of you not in the know) legal services in the past.  But, as I'm sure you can imagine, being an entertainment attorney and running a law firm can keep a guy pretty busy.  That said, my grandmother always told me that people make time for the things they think are important.  So, this New Year's Eve, I hosted my inaugural Vision Board Party and invited some like-minded, progressive people so that we could get 2011 started right.

The premise of such a party, is that you create what is essentially a collage of your goals and desires for the upcoming year.  You should try it sometime.  Now, the rule is, what happens at a vision board party, stays at a vision board party.  But, I'll  share this with you, just this once.  On my vision board, was the goal of volunteering and giving back to communities in need.  I was in search of a way to help people change their lives and their circumstances by using my legal skills, for free.  There I was, searching through my rolodex and Googling, in search of someone that needed free legal services in Los Angeles.  Just as I was going to put up my very own sign that said "Danny Andrews Los Angeles Entertainment Attorney, Will Work for Free," I came across the website for the Mesereau Legal Clinic, a non-profit organization started by world famous defense attorney, Thomas Mesereau.  On the website I read: 

"the Mesereau Free Legal Clinic provides much needed resources of legal information and legal assistance to residents who might not otherwise have ready access to such services. The panel of volunteer attorneys, paralegals, law students and others work diligently to ensure the residents of Los Angeles County are afforded the same type of professional, quality legal services as residents of affluent communities. All at an affordable price: FREE!"

This was perfect!  I couldn't have written it better myself.  Interestingly enough, I'd worked with this organization before, and found the work to be very fulfilling.  I jumped at the opportunity to reacquaint myself with the organization.  So, I signed up to volunteer.  The first session of the year will be held this Saturday, January 29, 2011, and just about every subsequent Saturday, at Morningside Church located at 8722 Crenshaw Blvd in Inglewood.  So, if you need free legal advice in any aspect of your life, or wanna come by and provide some free legal services, please feel free to stop by.  

Also, for more information and updates on this or other volunteer opportunities and activities that I am involved in, and/or if you need legal assistance, please feel free to contact me, Danny Andrews.  My contact information can be found at www.dannyandrews.com.