Entertainment Law Checklist

Independent Film Producer’sBusiness and Legal Affairs Checklist © 2009 By John W. Cones, J.D. Table of Contents Introduction ................................................. 2 Setting Up a Film Development or Production Company . . . . . . . . . . . . . . . . 3 Protecting the Chain of Title to Intellectual Property . . . . . . . . . . . . . . . . . . . 6 Hiring Members of the Production Company’s Professional Team . . . . . . . . 10 Arranging for Development Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Development Phase Tasks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Arranging for Production Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Financing of Non-Production Budget Items . . . . . . . . . . . . . . . . . . . . . . . . . 17 Pre-Production Activities ....................................... 18 Principal Photography Period Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Post-Production Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Marketing to Distributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Distribution-Related Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Film Performance Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 List of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 -1- INTRODUCTION The purpose of this checklist is limited to serving as a comprehensive reminder to independent film producers of many of the business and legal tasks and sub-tasks (i.e., projects and sub-projects) that they may find necessary to undertake, or have someone handle for them, in the process of financing, developing, producing and distributing one or more feature-length motion pictures. Not all tasks listed will be necessary or appropriate for each project (see “Alternative Tasks” below). Specific Limitations: 1. Business and Legal Not Creative – This checklist is first limited to those matters falling into the business and legal affairs category as opposed to the creative aspects of a feature film for which a producer may shoulder overall responsibility. 2. No Definitions of Terms – Second, no attempt has been made here to explain or define many of the technical terms used in creating this checklist, since, after all, it is merely a checklist. If you are not familiar with any of the terms used here, look them up in the Dictionary of Film Finance and Distribution or other published resources cited in the Checklist Bibliography starting on page 30. 3. No Explanation of Law – The very nature of a checklist is merely to remind users of the tasks involved in accomplishing a project. Thus, no attempt is made here to explain the underlying laws, rules or regulations that may make such tasks necessary or prudent. For additional information in that regard see the several books cited in the Checklist Bibliography that cover the broad topic of entertainment law. 4. No Checklists for Specific Agreements – Although the specific agreements to be used are often named in parenthesis following many of the points made in the checklist, and listed alphabetically starting on page 26, this checklist is limited in the sense that it does not attempt to go into the detail (with a few exceptions) that may be associated with similar but more narrow checklists commonly created by or used by entertainment attorneys in conjunction with each of the specific contracts typically negotiated and drafted as part of a motion picture project. For additional detail regarding the contents of such contracts see the 100 or more samples of such agreements in the book Film Industry Contracts cited in the Bibliography starting on page 26, along with the other entertainment law related books cited in the Bibliography that may contain additional sample agreements. Alternative Tasks – Not all of the tasks listed in this checklist are necessary to perform in conjunction with every film project, specifically because there is such a wide variance in film budgets and forms or combinations of film finance. Thus, some tasks are listed as alternatives which create choices to be made by the producer. A producer using this list must, in each instance, determine whether it is necessary to perform a specific task listed for his or her film project. -2- Producer Support Services – Further, the comprehensive nature of this checklist does not suggest that each of the listed tasks necessarily need to be performed directly by a film’s producer. Many other specialists may be enlisted by a producer to perform certain tasks. Such professionals may include entertainment attorneys, securities attorneys, executive producers, tax incentive consultants, foreign sales agents, entertainment lenders, production accountants, screenwriters, directors, casting directors, line producers, insurance brokers, producers representatives, profit participation auditors and so forth. How much help a producer may have often depends, once again, on the level of budget involved, and the background and expertise of the producer. For a comprehensive listing and descriptions of hundreds of film industry jobs see Introduction to the Motion Picture Industry – A Guide for Filmmakers, Students & Scholars also cited in the Bibliography starting on page 30. Chronological Order – Although the checklist is intended to be presented in an approximate chronological order, some tasks are performed at varying times on certain film projects either because of the personal preferences of the individuals involved or because producers tend to do what they can when they cannot control the timing of all or related events. For that reason, some redundancy is built into the checklist since certain tasks may be performed at varying times, as chosen by the producer, during the life of a film. Usefulness Beyond Producers – Based on the assumption that most film personnel are hired by and/or supervised by the producer to some extent, it would be beneficial to all filmmakers to develop a better understanding of what tasks producers are responsible for moving forward in these limited areas of business and legal affairs, so that they might better work together as a team in seeking to accomplish their overall goal of owning, producing and benefitting from a quality motion picture that may be of interest to distributors and movie-going audiences. Names of Agreements – The names of the many agreements that may be generated during the development, production and distribution of a motion picture are set out with initial capital letters in the text of the checklist. An alphabetical list of 140+ such agreements appears at the end of the checklist just before the Bibliography. If nothing else, that list of agreements should make it clear that the development, production and/or distribution of a motion picture is a document-intensive endeavor. Thus, whoever sets out to engage in such activities must be capable of managing the creation and use of such documents. This leads us to one of the very first tasks to undertake: -3- BUSINESS AND LEGAL AFFAIRS CHECKLIST Q Determine who among the producer group will be primarily responsible for business and legal affairs related matters. SETTING UP A FILM DEVELOPMENT OR PRODUCTION COMPANY Q Q Determine whether a company is needed at the current stage in the filmmaker’s career. Q If so, ascertain whether the company being created is to serve as an ongoing operating company or as an investment vehicle used to fund one or more projects. Q Decide whether the company will focus on development, production or distribution. Discuss with various attorneys whether your needs require the assistance of an entertainment attorney, securities attorney or general business attorney and the nature of the specific tasks to be accomplished. Q Q Determine whether you want to work with the attorney or attorneys selected on an hourly fee basis, flat fee basis or some other arrangement (Attorney Engagement Letter). Establish the form of doing business for the operating company (sole proprietorship, general partnership, corporation or member-managed LLC). Q If sole proprietorship or general partnership, determine if Fictitious Name Filing is necessary. Q If so, execute Fictitious Name Filing (dba). Q If general partnership, arrange for drafting of General Partnership Agreement. Q If a corporation, determine if regular “C” corporation or “S” corp is desired and arrange for the preparation and filing of the Articles of Incorporation with Secretary of State in the selected state. Q Q If a corporation, also arrange for the preparation of the Minutes for the shareholders’ meeting and the board of directors’ meeting, along with the corporate Bylaws (Certificate of Adoption of Corporate Bylaws). If a member-managed LLC, arrange for preparation and filing of the Articles of Organization with the Secretary of State in the selected state. -4- Q If a member-managed LLC. Q Hire a production accounting firm. fax and e-mail for the company. Q Determine who the owner or owners of the member-managed LLC will be. and discuss with an attorney. Q Establish relationship with an accountant or accountants and discuss the services provided. prior to the start of the film’s production. Q Determine in which state the business is to be formed and based. Q Arrange for a phone. arrange for preparation of the LLC Operating Agreement for member approval. Q Discuss with the attorney or attorneys when it would be best to form the company for legal reasons and then with an accountant for the tax aspects. Q Consider an office-in-the-home arrangement or an executive suite as the initial office. if needed. Q Determine whether the company will maintain physical offices and where. Q Discuss and determine the insurance needs of the company or project with insurance agents or brokers. -5- . Q Contact the IRS and obtain the Federal Tax ID number (aka Employer Identification number or EIN) for the company. Q If the accountant appears to go beyond accounting matters and provides what should be more fairly characterized as legal advice. Q Seek out the more focused production accounting firms or services and determine whether their services may be needed on a specific project. Q Develop a company logo. Q Consider creating business cards. Q Hire a general business accounting firm (Accountant Engagement Letter). letterhead and envelopes. Q Consider whether to trademark the company logo. double check such matters with an attorney. if needed. Q If the screenwriter is a member of the Writers Guild of America. -6- . or draft agreement to do both (Option/Acquisition Agreement). Using an Existing Screenplay Q Determine whether an existing screenplay is to be optioned and/or acquired.S. work with entertainment attorney in drafting a Screenwriter’s Agreement and negotiate the terms of the agreement. Copyright Office. Q Confirm implied-in-fact contract for an idea pitched to a creative executive with Written Confirmation after the pitch meeting (Implied-in-Fact Contract Confirmation Letter). make sure the production company is a WGA signatory and that other WGA requirements are observed. Q Make sure Screenwriter Agreement has work-made-for-hire language when appropriate. seek to have an agent or entertainment attorney negotiate a waiver of the production company’s Submission Release. Hiring a Screenwriter to Write an Original Script Q Ascertain whether a screenwriter needs to be hired to write a Script.Q Determine whether to create a website to promote the company and how best to go about creating such a website. try to get the production company to agree that the owner of the concept will be reasonably compensated if the idea is used by the production company (implied-in-fact-agreement). see entertainment law texts). Q Put the idea into a written form (Treatment or Script) that can be registered with the U. Q In the pitch meeting. Q If pitching an idea for a film to a production company creative executive. Q If so. PROTECTING THE CHAIN OF TITLE TO INTELLECTUAL PROPERTY Pitching An Idea Q Study and implement a plan to protect ideas through contractual means (implied-in-fact agreement. Q Once completed. Q Investigate the status of the copyrights for all source material used as a basis for writing the Script. to begin the Script’s chain of title. have an entertainment attorney help determine whether permission is needed (Copyright License). check all character names to make sure no one in the real world shares the names or the names are those that many people share. hire a professional copyright research company to conduct a full copyright search and prepare the Copyright Search Report. Adapting the Work of Another Q Determine whether a book. Q By having the screenwriter sign a properly drafted Certificate of Authorship. Life Story Rights Q Determine whether someone’s life story needs to be acquired. Q More specifically. obtain a Copyright Search Report. -7- . scenes. Q If so. negotiate and draft the Literary Property Acquisition Agreement and sign. Q If another person’s work is being adapted. Q If appropriate. Q If such script elements were taken from another copyrighted work. Q For fictional films. characters and dialogue are original with the screenwriter. short story. cross check owner information with the copyright office. have the screenwriter or screenwriters sign a Certificate of Authorship. obtain permission to do so (Copyright License Request Letter). Q If the Screenplay is based in part on someone else’s copyrighted work. check to see if an underlying work to be used is in the public domain.Q Make sure the contract is signed by the employee and/or independent contractor. have entertainment attorney verify the screenwriter had the right to create a derivative work based on that source. essay or article is to be adapted into a screenplay. if a Screenplay is to be adapted from an existing literary property: identify the owner. if that is the case. contact the owner and negotiate a deal. confirm that the Script’s structure. plot. purpose and character of the work). negotiate and draft a Writers Collaboration Agreement. nature of the copyright work). and the percentage of the copyright work used as compared to the whole of new work. of course. form a suitable company for the business.e. what level of impact. Writer Collaboration Q Determine whether it may be helpful to collaborate with another writer. Q Determine whether the use is a non-profit educational use as opposed to a commercial use (i. Q If collaborating with one or more other writers.e.e. -8- . Q Determine whether the work being borrowed from is non-fiction (i. Q Seek to avoid libel and defamation claims by ensuring that all portrayals and discussions about individuals are true and accurate.. and the best way to avoid court is to obtain the written permission of the copyright holder to use the work. biographical or historical) as opposed to fiction and/or more oriented toward entertainment (i. Q Seek to avoid invasion of privacy claims by making sure the Script is not prying into someone’s personal life in an overly intrusive manner. and if so. Fair Use Considerations Q Determine whether using portions of an underlying work constitutes fair use (i. Q Recognize.Q If so.. expense and uncertainty of outcome on such questions. Q Determine whether the use will have any adverse economic impact on the market for or value of the copyrighted work.. acquire life story rights (Life Rights Consent and Release). that it is generally preferable to stay out of court altogether due to the time. Q Obtain required written Consents and Release for all depicted individuals. the circumstances of the use rise to the level of an acceptable exception to the prohibition against the use of another’s copyrighted work) per the four following court guidelines.. Q Determine the approximate percentage of the portion being used as compared to the whole of the copyrighted work. Q If collaborating on development of a Script with one or more other writers.e. scientific. screenwriter or literary property owner to the production company intending to produce the film.S. Copyright Office in a timely manner. Q Make sure all purported copyright transfers are in writing and signed by the owner or the owner’s agent. organized chronologically.S. -9- . Q Also register this assignment with the U.S.S. Organizing the Chain of Title Q Create a file. Q Have each collaborating screenwriter sign the Certificate of Authorship to begin the Script’s chain of title. Q Always display the proper copyright notice on the cover of all copies of the Script. Q Make sure that the contracts transfer copyrights from the writer. Q Make sure there are no undocumented gaps in the time-line for the Script’s and film’s chain of title (otherwise. with no time gaps. Q Make sure that all Copyright Transfers and Assignments are recorded with the U. Copyrights Q See that all steps involved in properly registering the Script with the U. Q Work with entertainment (production) attorney to negotiate and draft appropriate agreements that relate to the transfer of the Script’s copyrights. see that the copyrights are assigned to the company formed by the collaborating writers (Copyright Assignment). file folder or binder in which to keep all copies of the Script’s and film’s Chain of Title Documents. Copyright Office. Q Start the Chain of Title with the Certificate of Authorship.Q In writer collaboration situations. Copyright Office are taken. Copyright Office. Q Complete the property copyright form for registration and pay the fee when submitting the Script to the U. Copyright Office. the film may not be accepted for distribution). once the Script is registered with the U.S. Tax advice and tax return preparation.). Assistance with film production financing activities. the film’s errors and omissions insurance company and distributors upon request. Assistance with development financing. Drafting and/or negotiating key Cast and Crew Agreements. Advising on union issues. Q Negotiate and sign Attorney Engagement Letter. Providing advice regarding employees and independent contractors. HIRING MEMBERS OF THE PRODUCTION COMPANY’S PROFESSIONAL TEAM Q Determine if and for which tasks the assistance or advice of one or more attorneys is required or would be helpful (for example): Protecting the Chain of Title to intellectual property. Determine which tasks require the assistance of one or more accountants or profit participation auditors (for example: General business accounting. Preparing a Screenplay Clearance Report. Filing a lawsuit against a distributor (Complaint). Q Determine and set out in the Attorney Engagement Letter exactly what tasks are to be performed. Negotiating. etc.Q Be prepared to present the complete Chain of Title for the Script and film (in chronological order) to SAG. Q Q Decide when and for what specific tasks to hire an entertainment attorney (or securities attorney) to help with development. Forming the production company. Film performance and profit participation monitoring. -10- . Q Determine on what basis the attorney will be paid (hourly. Federal and state securities laws compliance. Setting up and managing actor/director escrow accounts (Escrow Agreements). flat fee. Preparing internal company documents. advising and/or drafting Distribution Agreements. Drafting or consulting on other production related agreements. Production accounting. Negotiating and/or drafting Acquisition of Rights Agreements. production and/or distribution matters. determine whether the costs associated with the acquisition of underlying rights. development of script. Q Q Q Determine whether you will need to hire a profit participation auditor. budget and attached -11- . Q Also sign the Guarantor’s Takeover Agreement which under certain circumstances allows the completion bond company to takeover production of the film. Q If development financing is needed. at least Script. arrange for Completion Guarantor’s Letter of Intent and then when appropriate sign the Completion Bond Producer’s Agreement.. attaching elements and/or marketing the completed package to production financing sources). at least the Script. Q Decide if a fully developed package (i. Determine if a completion bond company will be part of the professional team and whether to obtain a Completion Bond. Q Once production financing is in place. ARRANGING FOR DEVELOPMENT FINANCING Q Determine whether financing is needed for the development phase of one or more films and whether development financing can or should be raised separately from production financing. Q Obtain a copy of one or more completion bond applications and/or checklists to determine whether the production company is able and willing to comply with all of its requirements.e. Expert testimony in lawsuit against distributor. budget and attached elements) can be handled out-of-pocket or must be raised from third-party sources. Q To do that.Profit participation demand on distributor. Q If so. pay premium for Insurance Policies. Identify entertainment industry insurance agents/brokers with whom to discuss insurance needs. Q Determine what kinds of insurance coverage are required or recommended (Insurance Policy). developing the Script or attaching elements to create a producer’s package (i.. determine which development phase tasks need to be undertaken (acquisition of rights.e. negotiate and draft the Writer’s Service Agreement. include adequate funds to cover cost of promoting project to production financing sources in Development Budget. for film remake). grants. recognizing that there are only two forms of compensation: fixed and contingent. Q Once development funds are available. DEVELOPMENT PHASE TASKS Q Q Rights Acquisition – If underlying rights need to be acquired. concept and/or previously produced film (i. Q Determine how development funds are to be raised (gifts. subsequently confirmed in writing. see that ideas to be pitched are contractually protected through an implied-in-fact contract. acquire rights to material such as book. Q Secure all necessary rights before writing the Script. essay. active investors. short story.. lender. and that the contingent category includes -12- .elements) is required to access the desired form of production financing (e. Q Make sure production company is acquiring rights from all owners of the underlying. stage play. Q If so. passive investors. industry sources. Q Determine the necessary elements of an Implied-in-Fact Contract in a story idea pitch situation. determine offering costs for subsequent investor offering for production funds.).. production-financing/distribution deal. Q Also. if needed.g. etc. perform each of the development tasks as needed. Q Note that a certain amount of money is generally required in order to obtain a firm commitment (including specified dates) from actors and a director. If a development deal at a studio is sought. life story. Q Work with entertainment attorney to determine the form or forms of compensation to be paid to the writer. negative pickup deal or foreign pre-sales).e. Hiring Screenwriter – If a screen writer is to be hired. rights (Acquisition Agreement). treatment. Q Q Consider hiring the services of a casting director to help determine the costs of attaching elements (Casting Director Agreement). Life Story Rights – If script is to be based on someone’s life story. if desired. etc. negotiate and draft a Writers Collaboration Agreement. see that a copyright search is performed to confirm whether the Script is in the public domain and/or to confirm ownership. Q If the production company needs to hire a writer or buy a Script from a writer who is a WGA member. Q Register the Script with the U. the production company needs to become a signatory with that union. bonuses. Q To punch up a Script or make it more commercial.deferred. Q Make sure Writer Service Agreement contains “work-made-for-hire” language in addition to writer’s assignment of all copyrights to the resulting Script to the production company. write them out of the movie or change the character so substantially that they are not recognizable. secure the rights to that life story (Life Rights Consent and Release).S. hire a script doctor to polish the Script. Q See that Script copyrights are assigned to the production company that is producing the film (Copyright Assignment). Q Q Q Hire one or more screen writers to write the Script. -13- . Copyright Office when completed. Script Development – Hire a producer and/or director to work with the screenwriter in developing the Script. Q If the screenwriter is writing with another writer. Q If an existing Script is purchased. Q See that the owner of the Script assists the production company in registering the assigned copyrights to the Script. Q Have screenwriter(s) sign Certificate of Authorship to start chain of title. Q Make sure a Life Rights Consent and Release is signed by every individual whose lives may be portrayed in the motion picture. Q If someone does not consent. profit participations. Q In the alternative. and develop offers. Q Determine whether full pay or play offers to talent or non-refundable deposits based on a percentage of their salary can be funded with development budget. Chain of Title). lender. ARRANGING FOR PRODUCTION FINANCING Q Determine whether one or a slate of films will be produced.. investor. utilize available computer software to prepare Budget. Budget – Create preliminary Production Budget. Q Submit the Script through an agent or an entertainment attorney to possible directors and lead talent. grants. Copyright Office so as to maintain the unbroken record of the motion picture’s ownership (i. foreign options). Q Work with casting director to conduct auditions for selected roles. tax incentives. Packaging – Engage in packaging activities (i. studio/industry. -14- . Q Use a casting director to help identify suitable and available talent.Q Q Q Make sure the production company has a signed contract granting it the right to make a motion picture (Acquisition Agreement). Q Hire line producer to prepare Budget based on Script and Script Breakdown (Line Producer Employment Agreement). record each with the U. Q Determine estimated production cost and costs of obtaining financing. make offers in effort to attach director and talent for lead roles).S. Q Determine which form or forms of film finance are most likely to successfully fund production costs of the current project (gifts. Q Have entertainment attorney draft Talent Deal Memos for use in packaging talent.e.e. Q Determine whether one or more recognizable “name” actors or actresses are to be hired. Q As each new document conveying rights to the Script or film is created.. arrange for representation by foreign sales agent (Foreign Sales Agency Agreement). Q If so. Q If bank loan without distribution deal. -15- . not a Business Plan. then approach entertainment lenders and completion guarantors. Q If investor financing. use Producer’s Package. study requirements of completion guarantors and apply for the Completion Bond. create Package and Promotional Materials in consultation with foreign sales agent. start researching possible grant sources and prepare Grant Applications. Q If seeking bank loan supported by distribution agreement and guarantee (Negative Pickup Distribution Agreement). entertainment lenders and completion guarantors with Producer’s Package. Q If grants. Q Include Cash Flow Schedule in package prepared for entertainment lenders. then asking prospective gift givers. Q If seeking foreign pre-sales. Q If active investors with knowledge and experience in the film industry. provide information through a Business Plan. review and sign Interparty Agreement and the bank’s Loan and Security Agreement. Q If a studio P-F/D deal is sought (Production-Financing Distribution Agreement). determine whether a Completion Bond will be needed. With respect to the various forms of lender financing. review tax consequences of gift giving and start identifying. Q If seeking financing from people or companies in the film industry. create Producer’s Package to present to studio executives. determine whether active or passive investors are to be approached. start approaching distributors. Q If negative pickup deal is available. consider possible collateral options. Q Q If foreign pre-sales are sought.Q If gifts. accompanied by appropriate active investor investment vehicle. -16- .. Q If active investors with little knowledge or experience of the film industry. Private Placement Offering Memorandum. units in a limited partnership or units in a manager-managed LLC. Q Determine which of the passive investor investment vehicles would be advantageous for this particular project: offering of corporate stock in an existing corporation. Q Investigate the rules relating to the use of finders in a securities offering. discuss the proposed offering with an experienced securities attorney. work with the attorney in drafting the LLC Operating Agreement. noting that such rules are different from the use of finders in active investor offerings and their participation is very limited. Q If a limited partnership is the investment vehicle. Q If a limited partnership.g. the initial incorporation scenario or the member-managed LLC. Q If a manager-managed LLC is the investment vehicle. Securities Disclosure Document and Subscription Documents.Q Q Consider which of the four active investor investment vehicles may work best for this project: Investor Financing Agreement. Q Identify finders who may be able to introduce the producer to prospective active investors (Finder’s Agreement) in a nonsecurities transaction. work with the attorney in drafting the Limited Partnership Agreement. arrange for the securities attorney to prepare a Securities Disclosure Document and advice with respect to otherwise complying with the federal and state securities laws. a security is being sold. Securities Disclosure Document and Subscription Documents. Joint Venture Agreement. since again. If passive investors. Offering Circular or Prospectus). Q Work with securities attorney in preparing required Securities Disclosure Document (e. consult with the securities attorney to determine when it is best to file the limited partnership’s Articles of Organization. since a security is being sold. Q Determine whether any non-production funds are needed to cover costs of preparation and delivery of “delivery items” to distributor. Q If so. estimate those delivery costs and arrange to include this line item in -17- .g. If tax incentives are to be relied upon. Q Also. separate from the production budget section.Q Q Work with securities attorney. Q Review distributor’s Delivery Schedule or an example of a distributor’s delivery schedule. separate from the production budget section. Determine whether funds are needed for marketing the completed film to distributors (e. accountant.. Q Q If so. Q Determine whether funds are needed to maintain the single purpose financing vehicle. state and international programs. Q Q If a manager-managed LLC. consultant or others in preparing Financial Projections for the offering. FINANCING OF NON-PRODUCTION BUDGET ITEMS Q Determine whether funds will be need for various non-production budget items and determine which line item descriptions to use in the use of proceeds presentation. distributor screenings or DVD. add a “maintaining the LLC” line item (for example) to the use of proceeds section of the financing materials. film festivals. maintaining the LLC).. investigate available federal. separate from the production budget. see below). consult with the securities attorney to determine when it is best to file the LLC’s Articles of Organization. Q If so. Q Also investigate the availability of companies to provide production advances against prospective tax incentives. if used (e. add a “marketing to distributors” line item to use of proceeds section of financing materials. Make sure that Financial Projections are prepared in compliance with existing SEC guidelines.g. add a “distributor delivery items” to the use of proceeds section of financing documents. separate from the production budget. Q Negotiate. hire the producer or additional producers (Producer’s Service Agreement). draft and execute the Producer’s Service Agreement. Q Set out in the Producer’s Service Agreement what rights to the film property the producer has. Q When a production company is in charge. Q After the Creative Producer has reviewed the reels and resumes of various director -18- . look for a producer with experience in film contract negotiations. and that the contingent category includes deferred. bonuses. Q In recognition of the fact that film production is a document-intensive endeavor. Hiring a Director Q Begin the process of selecting the director for the film.the effort to raise funds for the project. Q If so. make sure a specific production company executive is responsible for supervising the work of the producer(s). recognizing (again) that there are only two forms of compensation: fixed and contingent. Q Make sure everyone understands exactly what duties are expected of each producer. Q Define the producer’s specific duties in the Producer’s Service Agreement. if any. if possible. etc. Hiring Producers Q If not already on board. Q Investigate whether funds may be needed to later hire a profit participation auditor. the cost of hiring a profit participation auditor may also need to be included in the use of proceeds section of the financial documents. profit participations. Q Work with entertainment attorney to determine form or forms of compensation to be paid to the producer. PRE-PRODUCTION ACTIVITIES Q Confirm that production financing is in place. see that the Director’s Service Contract is drafted using the proper loan-out company language. hire the director). and that the contingent category includes deferred. draft and execute a Director’s Service Agreement (i. Q Interview director candidates and decide on selection. confirm the reported credits of the preferred director candidates. invade the privacy of others. Q Work with the director in selecting and hiring the director of photography (Director of Photography Service Agreement).candidates. Q If so. profit participations.. Q Determine if the director is working through a loan-out company. Q Work with entertainment attorney to determine form or forms of compensation to be paid to the director. Q Breakdown the Script. Q Negotiate. including an inducement clause (Loan-Out Agreement).e. Q Make sure the Script Clearance Report is completed well before shooting begins so the production company will have time to secure the needed Consents or make necessary changes to the Script. Script Work Q Continue polishing the Script. -19- . etc. delivery requirements for the film and the director’s obligations on reshoots and other post-production tasks. Q Determine whether the director is working as an employee or independent contractor. Q Have entertainment attorney review and clear the Script (Script Clearance Report) for all references that may be libelous or defamatory. bonuses. Q Scout and establish shooting locations. recognizing that there are only two forms of compensation: fixed and contingent. infringe copyrights of others or infringe or tarnish someone else’s trade or service marks. Q Make sure the Director’s Service Agreement clearly sets out how creative approvals are to be handled. and other key individuals the Director needs or wants for the project. -20- . Q If working with SAG.e. obtain rights where appropriate (Film Clip License Agreement). WGA. Q Determine whether Storyboards would be helpful for this particular project and consider hiring storyboard artist to create. Determine the most effective method to use in submitting the project to talent. Q Be sure and have production company become SAG signatory before signing any SAG actors (Guild Signatory Agreements). break-down script for descriptions of actors needed. Q Try to begin negotiating Cast and Crew Service Agreements as early as possible in the pre-production phase so as to avoid loss of leverage when time is running out. Q Determine rules associated with specific SAG contract and observe. Q Q If SAG. Q Submit the required SAG Forms at least one month prior to working with SAG actors. Q If stock footage or film clips are to be used. Stock Footage Q Determine what shots. consider assigning one or two producers the task of ensuring that the production company complies with SAG rules and labor laws. would be cheaper to buy from a stock footage company.Q Prepare Shooting Schedule. Q Become familiar with SAG. and to leave time for alternative possibilities. Q Contact assigned SAG representative for assistance. review portfolios with casting director. DGA. Q Determine whether the shoot will be union or non-union. Hiring Cast and Crew Q Start casting activities (i. IATSE or other guild rules and see that they are observed. post casting calls and plan auditions/interviews). if any. determine which SAG contract is to be used. Q Locate prospective actors through casting director and their agents. Q Work with your entertainment attorney to determine the form or forms of compensation to be paid to the cast and crew. bonuses and residuals. Q Negotiate and draft Performer’s Service Agreements. Q Have Cast and Crew Service Agreements signed by cast and crew members. determine whether the SAG contract being used allows use of SAG and non-SAG actors. Q Q Have entertainment attorney check to make sure the terms of Talent Agreements are consistent with SAG requirements. not the actor. Q If production financing is not entirely in place. have entertainment attorney check to see that Cast and Crew Agreements are consistent with federal and state labor and employment laws. Q Make arrangements to get Scripts to selected talent. consider whether obtaining Letters of Intent/Interest from prospective talent is possible and/or useful. Q In negotiating with talent. Q If required. Start hiring cast (Actor Service Agreements). be sure to keep budget limitations in mind and know the point beyond which you cannot go. post Bond with SAG to secure the actors’ payroll. Q Determine whether cast or crew members are working through loan-out companies and whether they can be treated as independent contractors so that agreements can be drafted accordingly. recognizing that there are only two forms of compensation: fixed and contingent. Q Consider submitting Scripts to talent through the entertainment attorney or casting director. Q Pitch the project to the agent first. profit participations. Q Also. Q Hire or obtain Letters of Intent/Interest from creative personnel. Q Also. and that the contingent category includes deferrals. -21- . Q If nudity is required of an actor. set up trust fund. limit the people on the set to those required for the shoot. Q If so. Q If credit conflicts are discovered. Miscellaneous Pre-Production Issues -22- . review special legal requirements.Q Create a restatement of all contractual credit provisions so as to prevent conflicts. make sure the parents give their signed Consent to allow their children to appear in scenes dealing with adult situations (Minor Release). Q Determine whether use of child actor requires court approval of their contract. Q If so. see that a Nudity Rider is attached to that actor’s contract (Nudity Rider). Q Determine whether use of one or more child actors requires establishing a trust fund for a portion of their salary (Trust Fund Agreement). negotiate to resolve by amending agreements. obtain court approval (Court Order). be sure to let the actors know before they audition for the part. Q Determine if child labor laws may restrict the planned Shooting Schedule. Hiring Child Actors Q If hiring child actors. Q Do not take still photographs of nude scenes without the prior written permission of the actors (Photo Release). Dealing With Nudity On the Set Q Determine if any roles require nudity. Q Talk to the crew prior to a shoot involving nudity and remind them to behave professionally. Q If so. Q For child actors. Q If nudity is required. by having someone review all Cast and Crew Agreements specifically with respect to credit obligations. Q Because of the complexities involved in licensing music. or some combination. Q Finalize the production budget. Q Determine and pay the required Shooting Permit fees.Q If animals are to be used be sure to follow all appropriate rules and guidelines. as needed. Q Discuss music needs for the film and how those will be met. Q Determine whether any Security Deposit or Bond is required. Q Negotiate and have the authorized person sign the required Shooting Permits. -23- . Q Obtain any necessary Shooting Permits and determine whether security deposits are required. Q Start planning to hire post-production staff. Q If a planned scene involves the use of pyrotechnics have the entertainment attorney obtain Special Permits. Q Contact the American Humane Association: Film and TV Unit for information on best practices for dealing with animals on the set. PRINCIPAL PHOTOGRAPHY PERIOD ACTIVITIES Q Insurance – Contact an insurance agent to add local government entities and others as additional insureds to Insurance Policies. as needed. Q Note and observe all local rules applying to the location. Q Determine whether pre-existing music will be licensed for the film (Music Licensing Agreement). Q Determine if Architectural Releases are needed for external shots including buildings. whether one or more pre-existing musical compositions need to be re-recorded for use in the film or whether music needs to be composed for the film (Composer’s Service Agreement). Q Shooting Permits – Identify situations where local government Shooting Permits are required. consider hiring an attorney with expertise in music licensing or hiring a music clearance service (aka music permissions and licensing service). how much it is and pay it. and therefore. Artwork License – Determine whether any scenes involve the appearance of the copyrighted works of others. may create potential liability for trademark infringement or tarnishment. and have them signed. Q If so. avoid shooting trademarks on the set or work with the entertainment attorney to obtain permission of the owner (Trademark Clearance Letter). Depiction Releases – Identify situations in which Depiction Releases (aka Extra Agreement and Extra Release) need to be signed by extras. or avoid their use. Q Either get permission through an Artwork License. Q Have entertainment attorney prepare Depiction Releases to use with passers-by and business patrons who may appear in a scene. Q Have the entertainment attorney negotiate and/or draft Artwork Licenses where needed. -24- . Q Make sure to clear all copyright and trademark protected materials appearing in the film. Q Have production attorney provide Depiction Release forms for extras to sign. Q Watch for situations on location where someone else’s copyrighted work may appear in a scene. to use the copyrighted works of others that may appear in your film. Q Make sure to include language in the Depiction Release describing how the footage will be used. Q Work with entertainment attorney in drafting and obtaining a signed Trademark Clearance Letters.Q Q Q Q Q Don’t forget to recover the Bond payment if no damage is caused during the location shoot. if needed. Location Agreements – Identify situations in which Location Agreements are necessary. Trademarks – Determine whether any scenes involve the appearance of one or more trademarks of another. Q Negotiate and draft Location Agreements. Q Make sure that the film’s credit roll conforms to the credit clauses in all contracts. Production Company’s Proposed Credits and source material for the Script to the WGA and all writers. Q Avoid photographing people on private property when they have a reasonable expectation of privacy. Q Q Shoot footage of some of the crowd walking past the Notice Release to serve as evidence of its posting. Legal Liability – Seek to avoid creating liability for the production company for specific causes of action (i. Music --Finalize plans for the film’s musical soundtrack and implement. staff or team. Q Post a Notice Release outside the entrance to any location involving large crowds. staff and team to insure that their contributions are entirely owned by the production company (Post Production Service Agreement). Q Determine screen credits for the film and make consistent with applicable guild rules. Q While shooting on location.Q Consider use of a Group Release for small groups that may appear in a scene. Q Work with an entertainment attorney to avoid violating anyone’s rights of publicity. license the needed music that has already been recorded (Music License Agreement).e. -25- . Q Make sure work-made-for-hire and assignment of rights language appears in agreements with post production company. privacy and moral rights.. as well as avoiding defamation. Q Hire the post–production company. Final Shooting Script. try to avoid creating any substantial or unreasonable interference with the use and enjoyment of anyone’s private property. POST-PRODUCTION ACTIVITIES Q Q Review and plan for post-production. Q If WGA writers were used in writing the Script. send the Notice of Tentative Writing Credits. potential lawsuits). Q If not already accomplished. Q Develop a list of distributors who may be interested in your film. Q Give cast and crew copies of the finished film on DVD with permission to incorporate portions into their reels. Make arrangements to re-record an existing song if necessary. Q Determine which of the three methods for marketing a completed to a film distributor is most likely to be successful: (1) film festivals. MARKETING TO DISTRIBUTORS Q Register the film with The Hollywood Reporter for their “Films In Production” list. Q Arrange to screen the film at selected film festivals/markets. Q Submit the completed film to selected film festivals/markets. Q Develop promotional materials to give out to potential buyers at festivals and markets (Note: The cost of such materials may be a non-production budget item. Q Consider hiring a producer’s representative to help in obtaining a distribution deal (Acquisition/Distribution Agreement and/or International Distribution Agreement). when appropriate.S. Q In the alternative. -26- . Q Register the completed film with the U. Copyright Office. arrange to screen the film for distributor representatives at a theatre in Los Angeles or New York. (2) screenings or (3) sending a DVD copy directly to distributors. Q Send invitations for the film’s screening to distributor representatives. Q Q If using a composer.Q Hire a composer if music needs to be commissioned (Composer’s Service Agreement). Q Also see that a disclaimer re the fictitious nature of the persons depicted appear in the film’s credits. Q Place a proper copyright notice near the film’s title and with the credits. but it may be smart to raise funds specifically for this task as part of the “marketing to distributors” line item) when seeking production financing. also have the composer sign a Certificate of Authorship. Q Check the Distribution Agreement for who pays the cost of delivery items and what delivery items are specifically required. prepare DVD copies of the completed film and deliver to distributors with information about the film. Q Develop an understanding of the special vocabulary used in Distribution Agreements and relating to the film’s revenue stream.Q In the alternative. Q If the production company is a SAG signatory. -27- . Q Review the film’s Chain of Title to make sure it is complete. credit and billing obligations and publicity obligations. re-estimate the cost.g. organized chronologically and ready to present to a prospective distributor. Q Distribution Agreement – If getting a distributor for the film is a possibility. likeness approvals. Q Determine how the actual terms of the Distribution Agreement differ from the related assumptions used in the film’s Financial Projections. if any. have the distributor sign the SAG Assumption Agreement re the payment of performer residuals. Q Develop a Cash Flow Chart (financial projections) based on the specific form of film finance used and the specific Distribution Agreement obtained.. Q Review all Talent Agreements for publicity restrictions. Q Add the distribution company as an additional insured on the production company’s E&O Insurance Policy. DISTRIBUTION-RELATED ACTIVITIES Q Obtain a copy of an E&O insurance policy application and make sure the production company can meet all of its obligations as per the application. Q Work with an entertainment attorney in negotiating the terms of the Distribution Agreement. Q If delivery of delivery items is to be paid for by the producer. Acquisition/Distribution Agreement or International Distribution Agreement). if any. and when. study and determine the various types of Distribution Agreements that may be available for completed films (e. Q Arrange for the profit participation auditor to send a Demand Letter to the distributor on behalf of all profit participants. Q Depending on what markets and media are taken by distributor. giving permission to the distributor to deal directly with the film lab. Q In the alternative. Q If appropriate for this project. Q Carefully review the distributor’s Profit Participation Statements for accuracy. If the film’s distribution arrangements are not adequate. Q Check the Distribution Agreement to determine when profit participation statements are due. aka Plaintiff’s Complaint). Q If desired. if appropriate. Q If required. consider self-distribution.Q Q Check the Distribution Agreement to see if a general assumption provision is included. execute Laboratory Access Letter for the distributor. Q Hire a profit participation auditor to audit the books of the distributor. for distribution expenses) and seek a rent-a-distributor deal.e. if necessary (as authorized per the audit paragraph in the distribution agreement). calling on the distributor to handle calculation and payment of all cast and crew profit participations. seek to exploit the film in all available markets and media. seek to exploit the other markets and media. negotiate for a provision to have the distributor assume the obligation for payment of all profit participants including SAG actor residuals.. consider raising P&A funds (i. FILM PERFORMANCE MONITORING Q Arrange for accountant or others to monitor the performance of the film in the marketplace. Q Hire an experienced litigation attorney with no distributor conflicts of interest to make further demands on the distributor. –o0o-- -28- . and sue if necessary (Complaint. including four-walling. distributors and others who may be asked to help in financing. As can be easily seen by reviewing this list of documents associated with filmmaking. Assumption Agreement 9. it is fair to say that filmmaking is not only a collaborative endeavor. Consent and Release 21. 1. Chain of Title Documents 20. Casting Director Agreement 15. Examples of many of the agreements listed below can be found in three books more fully described in the Bibliography: Film Industry Contracts. production and distribution of a motion picture. Dealmaking in the Film and Television Industry and The Pocket Lawyer for Filmmakers. Completion Guarantor’s Letter of Intent 25. Accountant Engagement Letter 2. Board of Directors Meeting Minutes 11. securities attorneys. Budget 12. Co-Production Agreement (aka Joint Venture Agreement) 27. Certificate of Corporate Resolution 19. entertainment lenders. Complaint 22. completion guarantors. Actor (Loanout) Employment Agreement 5. Artwork License 8. Composer’s Service Agreement (aka Composer Employment Agreement) 26. Copyright Assignment -29- . A review of this list also provides filmmakers with a quick overview and better understanding of much of the work engaged in or services provided by entertainment attorneys. Actor Service Agreement (aka Actor Employment Agreement or Talent Agreement) 4. Certificate of Authorship 18. producers. Cash Flow Schedule 14. developing. Certificate of Adoption of Corporate Bylaws 17. Business Plan 13. producing and/or distributing a motion picture. Acquisition/Distribution Agreement (aka Distribution Rights Acquisition Agreement) 3. Attorney Engagement Letter (aka Attorney-Client Agreement) 10. Articles of Incorporation 7. Slightly differing names may be used for some of such documents. Completion Bond 23. Architectural Release 6. Cease and Desist Letter 16. Completion Bond Producer’s Agreement 24. along with the preparation of the documents needed to support such activities.LIST OF DOCUMENTS The following is an alphabetical listing of many (but not all) of the documents (or as is the case with a film’s chain of title or a producer’s package -.a collection of documents) that may be generated in the financing. it is also document-intensive. development. International Distribution Agreement (aka Foreign Distribution Agreement) 58. Limited Partnership Articles of Organization 66. Guild Signatory Agreements 55. Laboratory Access Letter 62. Implied-in-fact Contract Confirmation Letter 56. Crew Service Agreement (aka Crew Member Agreement) 34. Deal Memo 35. Corporate Bylaws 32. Delivery Schedule 36. Copyright License 29. Escrow Agreements 45. Development Budget 39. Interparty Agreement 59. Film Clip License Agreement 48. Group Release 53.28. Distribution Agreement 43. Loan and Security Agreement 71. Guarantor’s Takeover Agreement 54. Line Producer Employment Agreement 67. Joint Venture Agreement (aka Domestic Co-Production Agreement) 61. Literary Property Acquisition Agreement 68. Depiction Release (aka Extra Agreement and Extra Release) 38. Copyright Search Report 31. Insurance Policies 57. LLC Operating Agreement 70. Letter of Intent/Interest 63. Distributor’s Acceptance 44. Extra Agreement with Extra Release (aka Depiction Release) 46. Loan Out Agreement -30- . Final Shooting Script 49. Investor Financing Agreement 60. Fictitious Name Filing 47. Life Rights Consent and Release 64. Director’s Service Agreement (aka Director’s Employment Agreement) 41. Limited Partnership Agreement 65. Distribution Rights Acquisition Agreement 42. Director of Photography Service Agreement (aka DP Employment Agreement) 40. General Partnership Agreement 52. Copyright License Request Letter 30. Financial Projections 50. Court Order for Child Services 33. Demand Letter 37. LLC Articles of Organization 69. Finder’s Agreement 51. Producer’s Service Agreement (aka Producer Employment Agreement) 102. Modified Low Budget Agreement (SAG) 81. Minutes of Corporate Meeting 78. Production-Financing/Distribution Agreement (P-F/D) 108. Mortgage of Copyright and Security Agreement 82. Profit Participation Statements 109. Minutes of Shareholder Meeting 79. Rent-a-Distributor Distribution Agreement -31- . Motion Picture Master Recording License 84. Minor Release 77. Makeup and Special Effects Agreement 74. Personal Release 98. Offering Circular 93. Location Agreement 73. Production Account Takeover Letter 105. Promissory Note 110. Option and Literary Purchase Agreement (aka Option/Acquisition Agreement) 95. Quitclaim License 113. Minimum Basic Agreement 76. Prospectus 112. Master Use License 75. Private Placement Offering Memorandum (PPM) 102.72. Negative Pickup Distribution Agreement 89. Music Licensing Agreement 88. Performance License 96. Music Co-Administration Agreement 87. Production Budget 107. Performer’s Service Agreement (similar to Actor Service Agreement) 97. Photo Release 99. Model’s Release 80. Music Assignment 86. Motion Picture Consultant Agreement 83. Option Agreement 94. Production Company’s Proposed Credits 106. Motion Pictures Stills/Excerpts License Agreement 85. Notice Release 90. Post Production Service Agreement 100. Notice of Tentative Writing Credits 91. Property Release 111. Poster/Artwork Clearance and Release 101. Nudity Rider 92. Recording Artist Agreement 114. Product Placement Agreement 104. Producer’s Package (a collection of documents) 103. Screenplay Purchase Agreement 117. Shooting Permits 124. Trust Fund Agreement 138. Stunt Performer’s Agreement 129. Screenplay Clearance Report (aka Script Clearance Report) 116. Shareholder Meeting Minutes 123.115. Treatment 137. Securities Disclosure Document 122. Trademark Clearance Letter 136. Writer’s Employment Agreement (aka Writer’s Service Agreement) 142. Script Synopsis 121. Sub-Distributor Agreement 131. Writers Collaboration Agreement -32- . Waiver of Corporate Meetings Notice 141. Script Breakdown 119. Synchronization License Agreement 133. Theatrical Exhibitor’s Licensing Agreement 135. Short Form Copyright Assignment 126. Screenwriter’s Agreement 118. Script (aka Screenplay) 120. Video Licensing Agreement (aka Videogram License) 140. Story Boards 128. Subscription Documents 130. Talent Deal Memos 134. Submission Release 132. Special Permits for Use of Pyrotechnics 127. Ultra Low Budget Agreement (SAG) 139. Shooting Schedule 125. -33- . Anti-Trust Law Journal. Vol. Cardoza Arts & Entertainment Law Journal. Summer 1987. Perhaps Misunderstood. Phillips. The Hollywood Reporter. Gerald F. The Times Herald. Gannet Center Journal. 495. January 14. Vol. Marcus. December 26. Whitney. 1992. July 21. Jill Mazirow Eshman.BIBLIOGRAPHY Articles. 2000-January 1. 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