Question For FilmTVLaw.com:

I’m an independent producer and want to pitch my series to contacts at a couple of networks that I have acquired over the years, but I am concerned about how best to present and protect my concept. What kind of materials should I have, and how do I protect myself from getting ripped off.

Answer by Brandon Blake, Entertainment Lawyer:

Great question. This goes to the heart of many issues surrounding protecting projects and ideas, and how to submit film and television projects. Having worked with most of the major studios and television networks, I have gained a good perspective on what materials to send and how to protect it. Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth advice that I publish twice a month.

While the question here involves a television series, the answer is going to be equally applicable to feature film as well. When it comes to television development, the key to both presenting and protecting the project properly is to have the project as well developed as possible. That means that it is better to have a script than a treatment. It is better to have a polished script than a rough draft script. It is even better to have prepared pitch materials like posters and websites, than to have just a script, etc.

Finally, the best position to be in with Networks is to also have a-list performers attached to the project, because that will tend to get the attention of development executives. If studios know that performers, and their agents and managers like the project, then it means the executives are taking less of a chance on choosing the material over the tens-of-thousands of other scripts submitted every year.

But what about the situation where there is a great concept but it has not been written in script format, much less packaged? I have had clients in this position before and it generally revolves around true-life stories and events. There are times when a concept is so good that it can speak for itself. In such a situation, the producer needs to make sure that all the underlying rights to the project are secured before pitching it. When you do not have well developed intellectual property, so that copyright protection might be limited, you then must secure the rights to the material by contract law.

The copyright law is set up to protect “tangible forms of expression,” and right or wrong, the courts have interpreted that as meaning that mere ideas are not copyrightable. Where an idea ends and a treatment begins is a source of controversy, but no producer wants to be in court arguing why the idea pitched was more than an idea.

This copyright issue is also why most networks will not accept the submission of ideas in the first place. From their perspective, another “teen comedy” or “Alaska reality series” idea is not going to be so unique as to differentiate it from thousands of other produced films or projects in development, but could get the studio in a lot of legal trouble if someone later claims their concept was stolen.

For security, submission of a project through our entertainment law firm is the number one way to protect your intellectual property. Networks and studios understand that our law firm saves all correspondence and materials, and understands that a record of the submission and chain-of-title will be secured by or firm, making stealing a concept or idea a non-issue.

When it comes to what to submit, I have learned a few things about the types of materials that studios and networks are looking for from producers over the past 17 years in practice. The key is top quality material, whether it is a treatment, screenplay, series pitch, pilot or trailer. The rule of thumb is to never ask the development executives to imagine how good the project will be with their help. Demonstrate the ability to finish the job, which will go a long way to getting the financing and assistance needed.

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question For FilmTVLaw.com:

For a fiction feature film/ television series: How identifiable do people on the street (not in the cast) have to be to require signed releases?

Answer by Brandon Blake, Entertainment Lawyer:

Over the years I have gotten more questions about releases than almost any other type of contract. In responding to questions about releases, first I like to discuss how to define a release, second, where the legal basis for a release comes from, and third, I will comment on when a release of some kind is usually used.

At the most basic level all contracts are the same. A contract is an agreement between two parties who both want something out of the relationship. There is the concept of “consideration”, meaning both sides are getting something of value out of the arrangement. Generally courts hold there must be consideration on both sides to enforce an agreement. 

So what is the releasing party getting out of the release? Theoretically, the party signing the release is getting the privilege of being in a film or TV show as some kind of background player. But to the surprise of some producers not everyone wants to appear in a movie or television show. So that is where the legal basis for releases begins. 

The legal requirement for releases comes from a number of different laws. Most basically is the right of privacy. The right of privacy may be codified, as it is in California or New York, or it may be a common law principle. California Civil Code, Section 3344 addresses the rights of privacy and publicity in commercial film and television productions in California.

The right of privacy, as it relates to film and television, states that a person has the right to not have their name, voice or likeness used commercially. In addition to the right of privacy, the torts of defamation and false light are both applicable. When someone is recorded there may be certain facts implied by the production. For example, if a person was filmed outside of a demonstration, that might imply he or she was part of the protest. Finally, the right of publicity disallows use of someone’s name or likeness as an endorsement or ad without consent.

So when is a release required? States like California and New York have made it fairly clear that for commercial film and television productions, a person cannot appear recognizably without prior consent. Other states rely on common law standards, so the laws will vary by state and use. But in general, it is by far the standard that everyone appearing recognizably in a feature film should have signed a release or otherwise clearly expressed consent to being recorded. 

The definition of terms like “commercial” and “recognizable” are unfortunately subject to dispute, and even in states with well-defined Codes, the application to any particular production is difficult. But producers hoping to get their project commercially distributed, and therefore requiring E&O insurance, should error on the side of more documentation and try to get signed releases from just about anyone possible.

As an entertainment law firm, our firm offers a number of packages that can help make it affordable to get the contract and legal help needed on any size of film or television production. Feel free to contact me about how we can help make sure your project has the legal documentation required by distributors and E&O insurance companies.

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question For FilmTVLaw.com:

I’ve got a terrific television series concept, but when I try to submit the project to television networks, either I get no response, or a form letter about “no unsolicited materials.” I know they will like it if they see it, so how do I get past this roadblock?

Answer by Brandon Blake, Entertainment Lawyer:

There are a number of different rationales for why entertainment companies of all kinds require film producers and television producers to submit new projects through an agent or entertainment lawyer, which range from the practical to the obstructionist.  Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.

For practical purposes, entertainment companies have a legitimate concern about liability. Copyright infringement suits are common, and once an entertainment company has received a pitch for a television series or film production it is going to be potentially more liable for a copyright infringement lawsuit. To reduce this risk, entertainment companies want a trusted third-party to document the pitch. If the film producer or television producer has a well-known agency or an entertainment lawyer submit the project, there is going to be a record of exactly what was submitted, by whom, and when. If a lawsuit ever materializes, there will be a third-party with evidence as to what happened. That is also beneficial for the film producer or television producer.

From a convenience stand point, television networks and film studios have another motive. This rationale is based on understanding what it is like to receive ten to twenty thousand submissions per year from film producers or television producers, looking to get an entertainment project made.  It is a daunting task to review so much material, so television networks and film studios want the agent or entertainment lawyer to do some of the work for them. By requiring submission through an agent or entertainment lawyer, the television network or film studio is making the producer do part of the work, having an experienced entertainment representative review the material and quite probably make suggestions and changes before the materials is submitted.

Finally, the requirement to submit through an agent or entertainment lawyer creates another hurdle to surmount before the material gets reviewed. This reduces the number of submissions as some percentage of television producers and film producers will lack the time and financial resources to obtain an entertainment representative to submit the project.

Rightly or wrongly, agent or entertainment lawyer representation has become a necessity when dealing with the large, bureaucratic media companies today.

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

How do I comprehensively protect the intellectual property in my film and television projects? I have two feature films I am developing and a TV show that is ready to pitch to networks. I don’t want to start until I know my IP is protected.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for the important question about how to protect the intellectual property in film and television projects.  Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.

None of our client’s intellectual property rights have ever been stolen, whether that involves film, television, music or high tech projects. However, we are never complacent and always working to make sure that our representation of projects not only connects them to studios, networks and production companies, but also protects the long-term value of the story and underlying rights.

Copyright is certainly important, and can serve as a first step, but it is really important to understand that certain important parts of any media project are not protected by copyright law. For example, the underlying concept and idea of a film or television series is not protectable under US Copyright law. While that might not matter too much when a filmmaker is shopping a completed feature film or submitting a project to film festivals, it becomes really important to film and television development. When it comes to reality television, the problem is especially acute, because a reality television series pitch will be mostly characterized as a concept rather than a tangible form of expression such as a screenplay or a pilot.

So, then there are several ways to protect the rights when copyright does not offer a solution. One of those ways is through contract law. Contract law can fill in when copyright does not protect the project. Especially in television production, everyone involved with the producer on the project must sign a contract dealing with the rights. Most projects are not stolen by networks and studios, but instead by former business partners involved in the early phases of development.

Contract law can also protect the producer when submitting the project for other parties to review the project. However, the producer needs to balance the desire to protect the work, with the ability to get other parties to review the materials. Film and television projects are collaborative works, and you need to bring a lot of people into a production to successfully launch the project. So, non-disclosure agreements are a double-edged sword, which can both help protect a project, and can scare off potential business partners.

Another issue to carefully consider are submission releases, which are essentially the opposite of a non-disclosure agreement. Networks and studios may ask producers to sign submission releases, which essentially contractually specify that the producer will not later sue for infringement. Typically, this can be avoided by having our entertainment law firm representing your project. By submitting the project through a recognized entertainment law firm, the network or studio knows that a record has been made of what was submitted and when it was submitted, thereby protecting both sides in the case of any future dispute.

In addition, trademark can be a way to protect content in a film or television series that is not protected by copyright. However, trademark used in this way is far beyond the sort of service available through online filing services. Our firm specializes in using trademark law to extend the protection available for film and television projects.

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question For FilmTVLaw.com:

We have a production company here in the US, but our director is German and we want to shoot some locations in Germany. Can we qualify as a co-production in Germany in order to get grants and tax breaks? Any help would be super. 

Answer by Brandon Blake, Entertainment Lawyer:

Foreign film and television financing is more important than ever, so this is a great question.  Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.

In order to answer this question we first need to break down the different types of incentives and financing that can be available for a project shot in Europe. In fact, there are two types of financing that can be available in many E.U. countries. The following is a brief analysis. Clients who retain our firm for development and finance services will receive an in-depth analysis of finance opportunities, including available European co-production eligibility. 

First, there are the tax incentives of which most knowledgeable producers are already aware. Just as in the United States, where various states will offer tax incentives to shoot or complete post-production in that state, such as New Mexico’s 25% incentive or Georgia’s 30% rebate, most European countries offer tax incentives for shooting in that country. These are not E.U. wide, but must be dealt with country-by-country.  Germany offers a 20% federal tax incentive for qualifying co-productions. In addition, most German states also offer tax incentives, which will be in addition to the Federal incentives.

Second, Germany offers a number of other grants, loans and investor tax incentives, which have parallels in other European countries including France and England. These additional incentives can be substantial, and include loans and grants for certain budget level projects. The German investor incentive allows investments in a film or television production to be written off against German taxes. This is not the same as the tax rebates discussed above.

However, all of this requires one key element, a German co-production. Co-production agreements are entered between countries, and provide for arrangements where projects can take advantage of local tax incentives and grants. For Example, Canada has co-production agreements with over 50 nations around the world, including Germany.

But here is the thing, the United States does not have a single co-production agreement with any country in the world, not one. So, to qualify, American film and television producers need to be creative. “The Bourne Supremacy”, “Inglourious Basterds” and “The Grand Budapest Hotel” all received German co-production money, so it is just a matter of dealing with the paperwork and working with the right partners.

What percentage of a film budget can come from State, Federal and European funding? The cap on direct grants and incentives throughout Europe is supposed to be 50%, however, there are exceptions, and this cap does not limit the investor incentives listed above, or third-party companies that can receive various incentives based off being involved in aspects of the production and distribution of the same film.

Here are some case studies, showing how much European money is available:

1)    “The Lobster” with Colin Farrell and Rachel Weisz received 56.7% of the budget from tax credits and subsidies, and 43.3% from territorial pre-sales. It should be mentioned that these presales are related to the co-production status as well.

2)    “A Royal Affair” with Alicia Vikander and Mads Mikkelsen received 40% tax credits and subsities, 23% private equity (tax advantaged), and 37% from pre-sales.

3)    “The Railway Man” with Colin Firth and Nicole Kidman received 50% tax subsidies and 47% presales, with 3% from other sources.

The takeaway from all this is that European co-production money can be very generous, and that the entire European system of finance and distribution revolves around co-productions. For example, nearly all French co-productions end up screening at the prestigious Cannes Film Festival, demonstrating that it is an interdependent system throughout the European distribution market.

With the right project, it is possible to get 100% of the financing through arrangements that in one way or another arise out of European film and television incentives. Unlike in the US, where private loans, private capital or studio financing must always play a part, filmmakers in Europe can cobble together funding entirely based on European government funds. Our firm can help advise as part of our development services for producers.

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question For FilmTVLaw.com:

Thanks for all the amazing advice on this blog, I always end up sharing the articles with at least one friend! Wanted to find out about the Section 181 tax deduction and whether that is still available, and also about any other tax advice you can give me for my film this year. 

Answer by Brandon Blake, Entertainment Lawyer:

Well this is tax time so it is a great opportunity to discuss tax issues that face film and television productions, including tax incentives, section 181, and how to properly tax plan for your production.  Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.

First off I will address Section 181 of the American Jobs Creation Act, the tax deduction for domestically produced film, television and theater productions. For all our clients who created offerings and qualified productions in 2016, the good news is that those projects will be grandfathered in for this year. The Section 181 tax deduction will be available for investors this year and for next year, provided production stretches into this upcoming year. So there is a reward for planning and foresight.

For 2017 projects, the Section 181 tax deduction has expired, and there is no current evidence that it will be revived this year.

However, that does not affect any of the tax incentives or tax rebates of other states. So, for example, the Georgia tax credit of 30% is still available, the New Mexico refundable tax credit of 25% is still a great option (with no minimum budget, which is a big plus), or the other state tax incentive programs.

Moreover, international tax incentives are still available, and are becoming even more important with the death of Section 181. The UK Film Tax Relief program provides a rebate of up to 25%, the refundable federal tax credit of 16% in Canada is still available, plus available provincial tax incentives in Canada which can double the federal incentive, and other more far flung tax incentives and deals can reach 50% of financing. So there are many opportunities to find a substantial portion of the budget outside of the US. Part of our development service focusses on identifying tax incentives and international funding for projects.  

However, tax planning does not begin and end with tax incentives. Properly setting up the tax structure of your company can save you and your investors substantial money and avoid needless accounting complications. 

For example, choosing the right tax structure for your production company can produce active losses for certain members, thereby making such an investment just as attractive as an investment under Section 181, if not more so, but the arrangement requires careful attention to detail when setting up the company. Filing the production company as a partnership or C-corporation, for example, could derail the very tax advantages that your investors might be looking for when Section 181 is no longer available.Loan out companies are another incredible way to save substantial amounts on personal tax returns. For example, did you know that by properly forming a loan-out company, that a writer, producer or director could obtain a 100% tax deduction on all production related expenditures? Even discounting the benefits of liability protection and copyright protection and management, tax savings alone will often justify the setup costs of a loan out company for writers, producers, directors and others.

But no company will set up itself, and there is no magical “check the box” on your 1040 to make a limited liability company or corporation work for you and your investors. It takes careful tax planning and preparation, the kind of work that our firm does every day for film and television makers at every budget level.  

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I see that you also answer questions pertaining to writers. I am hoping to start a small press, collaborating with a number of other authors to put out our own books as well as those we acquire from others. This is in the early planning stages, and I am just now realizing how much there is to do, but I wondered how much literary law differs from what you do. What is the best source for finding the kind of legal help I will need?

Answer by Brandon Blake, Entertainment Lawyer:

Yes, I have worked with authors and graphic novelists, as well as publishers for literary works and comic books, not to mention the estates of several famous authors. Understanding the law of publishing is critical to setting up a successful publishing company. Below I have set out the basic steps for running and organizing a literary publishing company.  Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.

When you are getting started with a literary publishing company, the first agreement you need will be the contract with the author. The publishing business is quite a bit different than the film and television business in that unlike a film or television production company, the publisher does not normally obtain any ownership of the literary project. The only exception would be sometimes with comic books or children’s books where the publisher was also actively getting artwork produced for the work.

So then in the publishing business the publisher must be very careful to license each of the rights needed for the edition intended to be published. Moreover, the publisher needs to decide how to deal with the sublicensing of international sales, and whether the publisher will get a revenue share from ancillary uses such as film and television projects that might arise due to the success of the edition that is published.

The term of a publishing agreement is also unusual in the entertainment business, because rather than being for a term of years, the term is set by the period in which a book stays in print, and usually includes a provision by which an author can request a second printing of the work.

Much like a film or music distributor, a publisher will typically determine a retail and wholesale price target for the book, and then provide the author with a particular participation. However, that would not be practical for foreign distribution, so foreign distribution is usually dealt with as a percentage of revenue. Finally, given that online download revenue is now sometimes exceeding the revenue from traditional unit sales, there also must be a revenue division for digital sales. 

Second, you need to sign a contract with your editors, unless this is going to be a one-person operation. The editing process could easily lead to copyrightable contributions by the editor, and the copyrights to those notes, ideas and revisions need to be transferred back to the publishing company, so that the company can comply with the deal being defined by the author agreement. If an editor were to try to claim a copyright in work being edited, it would create a huge legal problem for both the publishing company and the author.

Third, if you intend on using a distributor that will be handling in-store sales, shipping and printing, then you need to make sure that you do have a binding contract with that distributor. Particularly important will be the revenue provisions, because you cannot pass on profits to your authors if your publishing company cannot collect from the distributor. Most often foreign publishing deals will be handled as one-off agreements, so that will be negotiated on a project-by-project basis.

Fourth, you might want to consider whether talent management will also be part of what you are offering to authors. While every publishing deal is beneficial to the author, management service would involve representation of the author outside of the publishing of one work, and outside of the term of the publishing agreement. Management would include work such as shopping an author’s book to film or television production companies, or finding the author other writing work.

Fifth, it is usually the responsibility of the publishing company to file copyrights, if they have not been filed yet, in the name of the author, and to obtain an International Standard Book Number (ISBN) for the book.

Sixth, for the benefit of the publisher, a publishing company should be filed with the Secretary of State of the State where the publishing business is doing business. The company has a couple of benefits, including sharing ownership and control of the business between the owners, getting preferential tax treatment and avoiding self-employment and partnership taxes, and protecting the company from liability arising from contract law suits or copyright claims. 

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Can you give me some help with SAG Ultra Low Budget casting issues? I decided to go with SAG because there was an actress that my exec producer had a contact with, and now I am one month out without any cast deals signed. Can you review some deal letters and get these agents to realize I’m not shooting Star Wars! With this budget, I am lucky to have props, much less trailers, LOL.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for bringing up some great points about the casting and negotiation with actors and their agents. First off, working with cast takes time. I am struck by the number of times independent producers get our firm involved in a film or series that is “fully prepped” for production, but has no cast! Cast cannot be an afterthought, even for a SAG Ultra Low Budget project. Casting unknown actors carefully is just as important as casting A-list names. Don’t forget both Matthew McConaughey and Renee Zellweger got their first starring roles in the same “Texas Chainsaw Massacre” film. Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.

When it comes to working with actors in a project, here are some guidelines to making the process go as smoothly as possible. More than one producer has come back later and thanked me for each of these pieces of advice over the years:

1)    Be Careful on the SAG Budget Level Choice – The casting and distribution process really starts right from the very first choice you make with the Screen Actors Guild on the choice of Agreement for the film or series. Remember, there are some very big costs to the SAG Ultra Low Budget Agreement down the line when you go to try to distribute the project. Getting our firm involved at this stage can help save a lot of money and trouble down the line.

2)    Never Use the SAG “Standard” Performer Agreement Template – There is not a major feature film made today that ever used the SAG “Standard” Performer Agreement Template.  Even many actors’ agents are surprised when a producer uses one of the template agreements provided by SAG for the engagement. I have reviewed the SAG template Performer Agreement and it is missing about 75% of the provisions that a producer needs for even a low budget production. It makes sense, if you use somebody else’s form, you are going to be playing by their rules.

3)    The Initial Cast Deal Letter Needs More Detail – I have never reviewed a cast deal letter from a producer, casting director or agency that has enough detail. More detail benefits everyone. The fact is, actors want to work in film and television series, and producers need great cast. Ultimately everyone is on the same side and wants to make a great project. Needlessly getting in fights over deal points can ruin the creative process, and a little foresight early on prevents both conflict and litigation later.

4)    Keep Your Casting Director Involved in Negotiations – I really respect the work casting directors do, and producers need to make sure that casting directors stay involved in the negotiations along with the entertainment lawyer. 

5)    Get Long Form Agreements Signed Before the Start of Production – I am not sure why it seems like a good idea to many producers to not have long form agreements signed before the start of production. Believe me, the last thing anyone wants to do is get an actor to sign a contract the first day on set. In fact, SAG really discourages it. I talked about the creative process before, and this is one of those things that can damage the creative process. Those agreements need to be signed early. Although it is not always possible to sign before the start of production, producers need to try harder. The backup is the initial cast deal in point #3 above, which is why that deal letter needs more detail.

6)    There Are No Flat Deals for $20K! This one deserves its own special section, because of the number of producers who think that they can hire cast for a “flat” $10K, $20K, $30K, etc. No such deal exists under SAG rules! There is a SAG flat deal at a much higher compensation level, but even that is not really flat the way that producers think about the word “flat.” SAG work rules are always going to prevail over any kind of flat deal arrangement. 

7)    Don’t Treat Cast Like Crew – I have worked on some low budget projects where producers tell me, “Hey, the crew is all eating pizza and hanging out in the rec room, so why can’t the cast?” Sorry to say, but you just must get out of that mentality when dealing with cast. There are practical reasons for this too. For example, you can’t have your cast sweating it out before their scene, because it is going to ruin their makeup and clothes, etc. There is a reason for A/C and private dressing rooms. So, don’t just knee-jerk against every request by agents. The cast has probably been on more shoots than the producer and director combined.

8)     Recognize the Friendly Yet Adversarial Position of the Talent Agent and Producer – This is difficult, because talent agents are doing difficult work, for low pay, and want to see productions succeed, but also have a legal duty to represent their client to the maximum. Just as the entertainment lawyer is required to get the best possible deal for the producer, the talent agent is required to get the best possible deal for the actor. So, the producer needs to both avoid needless conflict, but also realize that, just like SAG, the talent agent is actually going to be advocating and working on behalf of the cast.

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

I actually have my production budget in the bank (thank God!), but now I am facing a mess with SAG, I don’t have any actor agreements done except for about 5 or 6 supporting roles, and my writer is holding out for a bo bonus(?). Basically, I have my budget, crew, and locations prepped, but legal is a nightmare and I don’t want to spend a fortune. Help!

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question. Pre-production planning is the key, and just as you plan your budgets, locations, and cast and crew calls, you need to plan your legal too. Of course, hiring our entertainment law firm with seventeen years of experience in production legal is important, but a lot of what I do when I start work with a client is to plan the legal side of a production. Some of that you can do yourself, so I will share some tips and tricks to help your legal budget stretch to the maximum. Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.

First off, it is important to prioritize the legal work for the film. I am including all kinds of “paperwork” as legal, because things like becoming a Screen Actors Guild and Writers Guild signatory are paperwork issues that have a big impact on the legal side of a production. Of course, all kinds of contracts and negotiations fall into legal, even if a lawyer does not actually prepare them. Finally, copyright, title search, trademark, and insurance fall into the legal category.

Often when a client gets started with our firm on pre-production legal, the producer comes in and dumps a huge pile of paperwork on us and says “help”! That is fine, and we provide full service production legal, but with a little organization a producer can cut through many of these issues with limited guidance from an attorney.

Legal That Doesn’t Require a Lawyer

There are some elements of a production’s legal work that does not necessarily have to be done by a lawyer. There are two big examples that I can provide that can save a ton of legal time, letting our firm focus on the heavy lifting.

I. Below-The-Line

Below-the-line agreements are the first category of contracts where we usually pick and choose certain items that are important, and prefer to leave the rest to the unit production manager. That is why it is so important to have a great UPM, because when it comes to preparing agreements for grips and assistant camera people, a producer probably does not need our level of expertise. 

While “below-the-line” can incorporate most of the on-set crew, there are certain crew members that I feel it is imperative to have our firm handle. Included in those crew are the director of photography, the editors, and the casting director. From years of experience I know that it is super important to get these right, and these positions are actually key creative positions that will make or break a film when you get into post-production. So, do not treat these key crew positions like the lighting and sound agreements!

II. Supporting Cast

Supporting cast agreements can usually also be left to non-lawyers. Depending on the film, you might have 50 or more of these agreements, and if you are smart and disciplined, each agreement should be the same form. Here is where an experienced casting director can make your life a lot easier. 

In other articles I have mentioned that you should not hire a casting director too early in the development process. But here I will add, don’t let your casting director go too soon either! The job of the casting director does not have to end when the last casting call is finished. Negotiate from the start with your casting director to make this critical piece of production legal a team effort.

Why? It is not just about time savings. When a casting director negotiates a three-sentence deal letter with an agent and then walks out the door, you have just created a massive “who said what” negotiation for the entertainment lawyer. When the casting director is still part of the production, he or she can easily clarify what exact deal was agreed to, and there is no question about what the rates and perks should be.

This is also why I ask producers to get my firm engaged as soon as possible for pre-production. If I can spend 30 minutes talking to the casting director, I can save 20 hours of negotiations down the line. It is just that simple.

Paperwork That Does Require a Lawyer

So, as I described above, there are times when legal work does not have to be done by an entertainment lawyer. On the other hand, there is some paperwork that often is not considered legal that a producer really should have done by an attorney.

I. The Guilds

Often producers feel a (false) sense of confidence when dealing with the Screen Actors Guild and to a lesser extent the Writers Guild and the Directors Guild. Especially with SAG, producers tend to find the process easy at first and hard later.

Many producers do not realize they are making major decisions for the film or television series that will impact future profits, distribution avenues, and even investor recoup, with that very first SAG signature. A producer needs legal representation to deal effectively with SAG and to determine the best possible agreement. This is more than a check the box choice. The initial set up of the paperwork will determine overtime rates, work rules, PH&W contributions, residuals, and many issues that affect future profitability of the film or series.

II. Above-the-Line

Every producer knows our law firm will best handle writer agreements and producer deals. Very few producers would want to hire a director without legal guidance. But the most important above-the-line negotiations will be with the lead cast.

Once again, keep your eye on profit and the ability to distribute. Nothing impacts the bottom line like the deals made with star cast. And once again, this is an easy in, hard out situation. Agents at all the big talent agencies, and I have lots of friends at agencies, so no disrespect here, but the agent’s job is to make the initial deal easy, and then extract every dime and perk on behalf of the client after the deal letter is signed. So once again, teamwork between our law firm and the casting director saves eons of negotiation time, and a little early prevention saves a lot of legal cure later.

III E&O, General Liability Insurance, Payroll, Title and Copyright Search

Here are a bunch of miscellaneous departments that I also roll into legal, because they all involve paperwork. Each of these is a separate service provider, and again, you can save a lot of money and headaches by getting a little well-timed advice before signing up for each of these. I can also provide referrals that can save a lot of money, which I do as a part of my legal representation of a project. 

IV Distribution

Yes, distribution is not part of pre-production. But why wait until after the film or television series is shot to decide where to sell it? Studios and major production companies don’t do that. They make distribution part of the pre-production planning.

Imagine if you have a buyer ready and waiting for your project, before you even set up on your first location! That isn’t just convenient, it can make or break your investors’ recoup. Again, I am happy to help clients plan for successful distribution, during the pre-production phase.
As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question and Answer for today:

Question for FilmTVLaw.com:

I have a feature film project in the beginning stages. After about a year of trying to pitch the project to studios, I have decided the better route is to get a few well-known actors attached first. Should I hire a casting director? I find I cannot get in the door with the agents. 

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question about casting directors. I have represented more than 50 feature film and television series over the last 16 years and regularly consult on film development for clients so I have worked with a number of great casting directors. Find out more about me at www.filmtvlaw.com.

However, casting directors are not there to do what is usually called “packaging” a film or television project. Casting directors are set up to do exactly what the name implies, which is to run casting calls and cast a full film or television series with great actors and actresses that are ready to work… now!

One of the biggest mistakes that independent filmmakers often make is getting a casting director involved too soon. That is frustrating both for the producer and for the casting director. I have seen the situation where producers feel that the casting director can’t, or won’t do their job, while monthly fees are being frittered away. But in truth the mistake does not lay with the casting director. The real problem is that casting directors cannot cast a movie that is not fully funded.

It is very rare for a casting director to cast a project more than two months before the start date of principal photography. In fact, many producers are amazed at how many roles get cast the week before the start date, and as an entertainment attorney I have spent many long nights the day before principal starts, prepping contracts for actors that are going on location the very next day!

So producers should be aware upfront of the scheduling needs of casting directors and realize that there is simply no reason to contact casting directors too early about a project.

Generally, the way that a producer packages a project is with the help of an entertainment law firm like ours. By working with the producer to shape and develop the project, we can approach top cast for projects that are going forward, but need a few A-list names involved before studios and financiers will sign on the bottom line.

With so many projects vying for a limited number of “star” cast, it can be overwhelming, but with the right help projects can get that jump start needed to move forward and get into pre-production. Then once the start date for principal photography is set, a casting director can do the heavy lifting and fill out the cast needed to shoot the film.

Feel free to contact my office about packaging and development service rates. As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

Okay, so I keep hearing about “Grandfathering” the section 181 tax break and I wanted to find out what that meant and if the year-end is any kind of a deadline. Thanks in advance for the help and keep up the great work.

Answer by Brandon Blake, Entertainment Lawyer:

Excellent question about the American Jobs Creation Act (AJCA) Section 181 Tax Deduction for film, television and theater productions. The Section 181 deduction is expiring at the end of 2016, but producers of films, television series and theater productions can “grandfather” in projects, thereby keeping all the benefits for future years. Feel free to get more details at www.filmtvlaw.com.

It is an unprecedented thing made possible by Congress when they drafted the AJCA Section 181 to apply to projects that “start production” before the end of the year. This wording is what allows producers to lock in the Section 181 deduction for coming years by doing a few simple things before the end of this year.

First, for those that are not familiar with the benefits of the American Jobs Creation Act, Section 181, the tax deduction allows investors in a feature film, television series, and now a theater production, to take a 100% loss on the project in the very first tax year, even if the project goes on to make money later. Needless to say this is something that investors want, and that investors will expect to get not just this year, but for subsequent years, due to the number of producers that are grandfathering in projects.

Grandfathering:

So, what is required exactly for “grandfathering” Section 181? A couple of steps are required:

First, a limited offering must be set up for the particular project to be grandfathered in. Congress specified it is the “project” that must be grandfathered in, and not the company, so each project must be separately set up as a limited offering. Otherwise, private investors cannot invest in the project.

Second, the offering must be filed with the SEC before January 1, 2017.

Third, at least “one day” of principal photography must be shot before January 1, 2017. We can help qualify the production under Section 181, but only if our firm sets up the limited offering this year.

Fourth, a particular tax filing must be made at the start of 2017. Because the IRS never produced a “check the box” type of form for Section 181, the law firm handling the offering must provide the information to the IRS. There is no printed form to take the deduction, and it will not be apparent on the 2017 corporate or partnership tax forms.

Deadlines

It takes a minimum of one-month to file an offering now with the SEC. Because of the new online filing requirements, the company must first qualify to file the offering, and then the offering paperwork can be filed.

Unfortunately, this is not a process that can wait until mid-December to begin. By that point it will be too late to grandfather in a project. Moreover, there is expected to be a rush of applicants this November and December, which will most likely cause delays. So, it is crucial to begin this process this month to complete it by the year end.

Please feel free to contact our office for a quote. As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I am planning a trip to AFM this year to sell a horror film I shot late last year. What do I need to do to sell my project at the market this year?

Answer by Brandon Blake, Entertainment Lawyer:

With AFM starting November 2 this year, you are cutting it short in terms of market preparation time. However, even with this short notice there are some things that you can do to get market attention at AFM. I have represented more than 50 feature film and television series over the last 16 years and regularly consult on film distribution for clients so I have picked up a few tricks over the years. Find out more about me at www.filmtvlaw.com.

The following is a guerrilla guide to making the most of AFM at the last minute. A lot of these points are also great ideas for preparation for other markets. The major markets to hit during the year include Berlin, Hong Kong Filmart, Cannes, Toronto, Busan and of course AFM, so these tips can come in handy all year round.

1. ONLY BUY THE PASS YOU NEED

If you hurry you can still get a little discount off of the cost of a pass. AFM is strategically held over a weekend this year, so you can’t go wrong with Saturday and Sunday. You can usually write off the last two days of the market, unless you like to look at piles of empty boxes and empty booths. Most conferences and screenings are a distraction, so just plan around your meetings.

2. PLAN, PLAN, PLAN

Get a map to the market floor. The layout of the AFM is a complete mess, so figure out where all the offices are before you go. Don’t get caught studying your market guide Saturday morning when you should be selling your film. Spend every day between now and November 2nd scheduling meetings.

3. GO DIGITAL

The days of 50 pound boxes of press kits are thankfully over. Keep the printed, bound, and laminated items to a minimum. Today people expect to get one powerful image that will drive viewers to an excellent website, online screener and social media presence. My firm can consult on how to maximize marketing and promotion strategies.

4. GO PROFESSIONAL

Less but higher quality marketing materials is the key. Usually film and television producers spend all their time on the footage, and none of the time on the marketing. But the first thing buyers see is the marketing material! Marketing sells movies. That is true for big budget feature films and SAG Ultra Low Budget projects too.

5. SOCIAL MEDIA MATTERS

Yes, it’s official. The fan base for a movie matters. Cast, marketing, and concept all come together to either produce a great social media presence, or not. So make sure the social media campaign is as professional as the website and graphics.

6. FIVE SECOND RULE

Be able to explain why the movie is awesome and deserves a view in five seconds. Literally, that is how long you have to sell a buyer on your movie. Do not expect a movie to speak for itself. The movie cannot sell without eyeballs to watch it, and the only way to get that valuable eyeball time is to make the film or television project irresistible within five seconds.

7. THE MARKET IS JUST THE BEGINNING

No matter how many introductions you make at the market, the market is just the beginning. Film sales is about follow up. Keep the conversation going.

Feel free to contact my office about distribution and market consulting. From marketing, to negotiation of sales and distribution agreements, I have been representing filmmakers at markets for 16 years.

As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

Saw your Q&A blog at www.filmtvlaw.com. I’ve got a concept for a reality television series and went out and bought the life story rights already. Now I am trying to wrap my head around how to get it made. Should I pitch it to production companies or go straight to the Networks? Another friend who is established in the industry said I need a pilot. Any help would be super.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for contacting me about independent television production. It is a hot topic right now because so much great content is now finding a market on television and video-on-demand platforms like Netflix, Amazon and Hulu. Whether to try to independently produce a television series depends a lot on the format of the series, financial resources, and ambitions for the series. Our firm has been helping a lot of clients get television distribution. I will explain how to make the decision whether to pitch to an established production company or produce a television series independently. In addition to this article, you can also look up our Q&A blog at http://filmtvlaw.com/entertainment-lawyer-qa/.

Format Choices

First, the format of the series is critical. If you want to develop a scripted one-hour drama or a half-hour sitcom, the odds of success will increase if you pursue the traditional route of television development. That means focusing on cast and the material. A solid, professionally written pilot teleplay, one or two A-list cast members, and network quality development materials are essential. A sizzle-reel can help, but only if it is broadcast quality. From there our firm can help to pitch to production companies who will work with you to produce a pilot and set up the series at a network.

Reality television, however, is wide open for independent production. But independent production does not mean Youtube.com or a web series. The problem with web series are two-fold. First, if a producer wants to approach a network about a web series, that web series must have over 100K, and preferably over 1M views before the networks will even start to take notice. If a producer puts the series or pilot onto a public video service like Youtube and it only acquires a few thousand views, then the producer is actually making a case for the project having no market.

Second, the Networks are fighting like crazy right now to stay relevant, and not to end up being considered just another Youtube channel themselves. That relevance means seeing fresh, unique content that is not available anywhere else. So network executives will run the other direction when you bring web content to them, unless of course the series has several million views.

However, independently producing a pilot for reality TV (broadcast quality, of course), can be a ticket to a network deal. Content is critical, and budget is also key. Make sure that the series does not cost millions of dollars per episode to produce, and also do not produce something that requires major tie-ins from other organizations or events. Keep it simple and really compelling. And make sure you know what Networks want before you start shooting. No reason to spend a few hundred-thousand on a pilot, only to realize the concept was last year’s trend for reality TV. We can help clients zero in on what is hot now at networks.

Children’s programming can also be produced independently. Both animated and live-action can work, but be sure that you are producing for the appropriate demographic, since children’s programming needs to fit certain criteria to find a place on the networks. Is there an educational component? What is the age range for the programming? Make sure you have a clear idea for the market before moving into production.

Choose Your Network

Second, consider what type of network distribution you want. The big four television networks are going to be the most challenging, and produce most content in-house, or with a few major studio production companies. Independent television production is not realistic for this category of networks.

Premium cable is another class where independent series are a long shot. Although you could certainly independently produce a film, or even a short mini-series for a premium cable network, full season scripted series are going to need to be developed in the more traditional way.

Cable television is certainly home to much independently produced content, from reality television to mini-series, movie-of-the-week, children’s programming and fully-sponsored content. This is the place where independent television production is taking off. However, every network has a very particular style. Our firm can help pin-point the market before a lot of money goes into production.

Video On Demand

Third, video-on-demand is huge right now and many viewers are abandoning the linear broadcast channel format altogether for exclusively paid and subscription VOD. However, even here there are two tracks. There is the content that is featured and/or produced in-house by Netflix, Amazon, Hulu and others, and then there is the vast thumbnail wasteland of acquired content. Our clients produce content that is promoted and watched, not just placed at the end of a scroll list.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. At BLAKE & WANG P.A. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office at www.filmtvlaw.com about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

A novel was published in the mid '90s and became a best seller. A studio paid a small fortune and purchased the book. Over several years they hired writers who adapted the book but the studio never went forward to make the picture. They put it into turnaround. No other studio picked it up.

 The original writer of the novel, frustrated, adapted his own novel and submitted it to the studio. They loved it but much time passed, nothing happened and it was once again put into turnaround.

 I would like to make a deal with the novel/screenwriter and acquire the novel rights and his screenplay adaptation. I understand that turnaround costs generally have to be reimbursed. If I commit to pay the author for the book rights and for the screenplay, who is responsible to reimburse the studio?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question about a very complicated part of the option-acquisition process. While the terms of a Turnaround Agreement can vary substantially from one project to another, since it is the writer’s job to initially negotiate a turnaround agreement as part of the purchase of the property, there are many elements that most turnaround agreements share.

First, it is important to realize that turnaround is not the same thing as an expired option agreement. When an option agreement expires, and of course depending on the terms of that document, usually the writer at that point is free and clear to thereafter do anything the writer wants with the project, including selling it to a new production company. There can be some strings attached to development materials produced by the option holder, but that is a separate article.

However, a turnaround agreement only becomes applicable after the work has been purchased by the studio or production company. In other words, the acquisition price has already been paid and now the studio is the owner of the work.

So why would a studio ever want to enter into a turnaround agreement, given that the whole acquisition price had already been paid?

The reason is generally because a decision is made at some point to abandon development of the project. While that can be a costly decision, since the whole acquisition price would be lost, it is sometimes better to let that fee go, rather than produce a film that the studio decides will not be profitable.

So turnaround then ends up being to the studio’s advantage. It is too late to get the money back from the writer of the script, but the studio can offer the writer a period of time in which the writer can go out and find a new buyer for the property. Basically the studio is using the writer to try to recoup the costs that the studio spent on the script. Writers have an incentive to do this work because the writer wants to see a script get produced, and besides the career benefits to that, there are also usually bonuses and backend participation that will only be paid if the film actually gets produced.

Now back to the question, which is, who gets paid under a turnaround agreement? It is the original studio that has to be paid, because the studio is the one that actually owns the rights to the project. However, the right to re-purchase the rights owned by the studio are actually held by the writer, so both parties must be negotiated with to complete the deal. The new producer or studio must ensure that the turnaround is conducted correctly, or else there will be a problem with the chain-of-title with the project.

The price to be paid for the turnaround is specified by the turnaround agreement, but is generally more than the initial payments made to the writer for the option and acquisition. How much more will be decided by the initial negotiations the writer or his agent or attorney did when the studio purchased the script in the first place.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

I know the Section 181 Film Tax Deduction expires this year, but I am still confused about what exactly is required by the law and what deadlines there are, if any. A producer friend of mine suggested I set up an offering, but I also heard that in some cases a tax filing is required. Any help would be great.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for following up on Section 181. The regulations that the Internal Revenue Service enacted were never extremely detailed, which is the source of much of the confusion about the Section 181 Film and Television Tax Deduction. However, over the years precedents have been established for how to best take advantage of the tax deduction.

In order to avoid IRS tax penalties and securities fraud liability to the investors for a failure to secure the tax deduction, a number of things must be done. The following is not an exhaustive list, but gets to the core of what is required to both comply with the regulations and provide the investors and their accountants with what is needed to take advantage of the tax deduction:

1)    Set up an offering of securities for the film or television series before January 1, 2017;

2)    File the offering with the SEC and with the States where investors reside, not more than 15 days after the first sale of securities (in some states earlier), and not later than January 1, 2017

3)    Shoot at least one day of principal photography before January 1, 2017;

4)    Elect to take the IRS Section 181 Tax Deduction before March 15, 2017;

5)    Provide the investors with a K-1, tax opinion letter, and copy of the tax election before March 15, 2017.

Now I will give a little more detail about each of the above.

First, a Section 181 compliant securities offering is required since it allows private equity investors to both invest in the film or television series in question, and then, to take a loss when the production company files for the Section 181 Deduction. Any time a production has passive investors in a film or television project, meaning the investors are not actively working on the project, a securities offering is required.

Second, once a sale of securities has been completed, the SEC requires that the exemption form be filed with the SEC. The time for this filing is not later than 15 days after the first sale. However, some States require a filing before the first sale, so consult with a securities firm like ours to determine when investments in a particular state must be filed. It is my opinion that an offering that has not been filed with the SEC cannot be grandfathered in for subsequent years, since there would be no evidence that the investment had even been offered before the expiration of the Section 181 Tax Deduction.

Third, the IRS regulations specifically require that at least one day of principal photography be shot before the expiration of Section 181, which is January 1, 2017. Moreover, that day of photography must be in the ordinary course of production. So in order to lock in the deduction for your production, both for 2016 and also for 2017 and subsequent years if needed, at least a day’s production must be completed this year, and it needs to be part of a larger plan of production.

Fourth, the election must be made by the production company to actually take the tax deduction as part of the corporate tax statements the company must file in 2017. There is no specific form or “check the box” available, so it will not show up as a line item in the company’s annual returns. If the company does not properly elect to take the deduction, then all expenses of the company will be treated in the ordinary way for the life of the production company.

Fifth, the investors will need to get a copy of the K-1 from the company, showing the investors share of the loss, as well as a copy of the tax election to take Section 181, and finally, a copy of an opinion letter from an attorney that specifies that the company qualifies for Section 181. Not every film qualifies under the rules that Congress set up, as it is supposed to promote domestic film and television production. So an opinion letter stating that the production qualifies for the deduction and that the offering has been conducted pursuant to the regulations is required.

Since it takes about eight weeks to file an exemption with the SEC, do not wait until December 1 to lock in the Section 181 Deduction for a film or television production. Now would be the best time to get started, to ensure everything is completed and filed in time.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Is it true that you automatically have the trademark rights to a name as soon as you have used it in trade? For example, If I make a movie or a comic book with a character named “Dr. Doomsday,” do I then have legal trademark rights to the name “Dr. doomsday” in the United States? Do I have the same trademark rights as a registered name, or what is the difference?

Answer by Brandon Blake, Entertainment Lawyer:

Thank you for a great question about common law trademark. Yes, it is true that there is something called common law trademark. In some states there are also statutes that codify these trademark rights. Additionally, a number of states even allow for a State trademark filing, where the mark is filed with the state rather than with the US Patent and Trademark Office.

Common law trademark works in much the same way as Federal trademark. Titles of single works and names of characters are not protectable in and of themselves. For example, if your comic book was titled “Dr. Doomsday” and it was an ongoing series, then that would qualify for trademark protection, provided the series was being sold commercially. However, if a movie or a single graphic novel was titled “Dr. Doomsday”, that would not allow for trademark protection. Likewise, the mere fact of having a character named “Dr. Doomsday” would not qualify for trademark protection, unless consumers related that character to some product or service. These basic principles of trademark law will apply regardless of whether we are discussing Federal or common law trademark.

Common law trademark, whether it is filed with a State or not, is acquired by using the mark in commerce. That means that the mark must be used to designate a product or service that is currently being sold in the market. There is no way to preserve the future right to use the mark.

There are some limitations to common law trademark. The first limitation is that the mark will be strictly limited to a particular geographic area. The geographic area is limited to where the product or service is actually sold. So if you only actually market the comic book in California, then you will only own the mark in California, and others throughout the country could use the same mark, provided they did not offer their comic book for sale in California.

Another limitation is that a Federal trademark filing will typically be given precedence over a common law trademark. That is not to say that the Federal filing will preempt the common law filing, but proving use in commerce can be difficult without a filing to provide a presumption of use.

The benefits of a Federal trademark filing include national coverage regardless of the actual scope of use in commerce, the ability to recover profits, increased damages and costs due to infringement, incontestability of the Federal mark after five years, the right to sue in federal court, the right to have the Customs Service block import of infringing goods, among many other benefits.

The most likely area where common law trademark law becomes important is when a cease and desist letter is received from a Federal trademark owner. At that point, the common law mark owner can assert his or her common law rights to protect the use. However, it makes a lot more sense to pre-empt this kind of situation by having a Federal trademark filed, and securing your rights throughout the United States.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

I’m working on a television pilot and want to use a 10 second clip from an old black and white movie from the 1950s. A producer friend of mine says the movie is in the public domain, but I heard pd starts in the 1920s. Help!

Answer by Brandon Blake, Entertainment Lawyer:

With all of the extensions of copyright law in the United States, it is easy to get confused about when exactly a work is officially in the public domain. It is true that there are in fact movies from the 1950s and even the 1970s that are in the public domain, while other works from the early 1920’s are still solidly protected by copyright law. Let’s start with the basics first and then analyze how things got so mixed up.

The term of U.S copyright is presently the author’s life plus 70 years, or for works made for hire 95 years from publication or 120 years from creation, whichever is shorter. That being said, this is only the most recent term of copyright, and the term in the past has been substantially shorter. If a work is privileged enough to get in under one of the many extensions of copyright, the term can be extended, provided that the work is not yet in the public domain. However, this process creates a huge diversity of copyright terms between various works.

So, now that we have gotten the basics out of the way, lets dig into the details of how to determine if a work is in the public domain. To do that, we need to distinguish between works first filing copyright registrations after January 1, 1978, versus works that already had a copyright before 1978.

Works Copyrighted Since 1978

For works created after January 1, 1978, copyright automatically affixes to the work, no filing is necessary (although many benefits come from copyright filing).  For these works, the start of the copyright clock is the moment of creation, and the term is the life of the author plus 70 years. For a joint work, the term is the life of the last surviving author plus 70 years. For works-made-for-hire, the term is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author’s identity is later revealed in Copyright Office records, which then reverts the term to the life of the author plus 70 years.)

A second category of works are those that were created before 1978, but not copyrighted or published. Long lost Mark Twain manuscripts and re-discovered Beetles compositions can fall within this category. In general, the term is the same as above, but all works in this category are guaranteed at least 25 years of statutory protection. In addition, if a work in this category was published before December 31, 2002, the term extends another 45 years, through the end of 2047. 

Works Copyrighted Before 1978

Provided you have followed along to this point without problem, here is where it starts to get tricky. That is because the copyright term of older works is determined by the particular copyright act in existence at the time the work was created, unless the term was specially extended by a subsequent act. These works breakdown between the 1909 Copyright Act, the 1976 Copyright Act, and the 1998 Copyright Term Extension Act.

Duration Under 1909 Copyright Act

Under the 1909 Act, the work was not automatically protected by copyright, but instead copyright protection dated from either the first publishing of the work, or otherwise from the first registration of the work. The term of copyright was only a single 28 year period, but that could be extended for a second 28 year term in the 28th year of the preceding term. So that is why early works vary so much in the term of copyright protection. Many works in fact were not correctly extended for a second term, and at that point the works entered the public domain.

Duration Under 1976 Copyright Act

The 1976 Copyright Act continued the system of the 1909 copyright act, requiring a second renewal of copyright in the 28th year. However, the length of the renewal term was increased from 28 years to 47 years. 

Duration Under 1998 Copyright Term Extension Act

The 1998 Copyright Term Extension Act increased the renewal term another 20 years, to 67 years. The effect of this second Copyright Extension Act was to increase the copyright protection for works already copyrighted by January 1, 1978, from the original 56 years, to 95 years (a first term plus 67 years). 

So The copyright term for any one work will depend on the date that it was either created, published, or filed for copyright, and for works before 1978, whether or not the copyright was properly extended for a second term. However, one thing is certain, which is that all works published in the United States before January 1, 1923 are in the public domain. That is not based on the present term of extended copyright, which would actually protect a work through 2018, but instead on the fact that a work with a copyright that expired by 1997 must now be in the public domain, because it missed the 1998 extension.

 In addition to these rules regarding the maximum term of copyright, there are many works, including feature films, music, books and even television shows that have fallen into the public domain since 1923, including works created as recently as the early 1970s. 

To determine with certainty the length of copyright in any one particular work, some substantial copyright research is required. As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Thanks for all the great insights every month. My question - What rights do extended family have in terms of a bio pic on a deceased public figure? How long does someone have to be deceased for their story to be considered public domain?

Answer by Brandon Blake, Entertainment Lawyer:

A great question about life story rights, how long after death those rights can extend, and who holds the rights to a deceased celebrity. First, the phrase “public domain” only legally applies to the copyrights in a creative work. Terry Gene Bollea (aka Hulk Hogan), had his entire copyright case against Gawker dismissed and yet went on to win $140.1 million under the same claims that can be brought against a producer for failing to obtain life rights to a project.

Copyrights are important, and copyrights often form part of a life story grant of rights, but such rights are only a portion of what is being acquired in a life rights deal. Why is that matter? Because while U.S. copyrights have a specific duration that can be calculated based upon when the work was first created and whether the term of copyright was renewed or extended, other rights have no such fixed duration, and cannot be so easily be measured in a number of years.

The term of U.S copyright is presently the author’s life plus 70 years, or for works made for hire 95 years from publication or 120 years from creation, whichever is shorter. Due to the number of questions I get about copyright duration, and the complexity of the subject, I am planning a separate article in two weeks that delves into the specifics of U.S. copyright duration, so please be sure to follow us on Linkedin, Facebook or Twitter so you do not miss our next issue.

The second term that is probably incorrectly used in the question is “public figure.” Unless the person in question was a former President or Congressmen, then the term public figure probably does not apply. The reason is that the term “public figure” applies to a particular constitutional test for defamation, limiting the claims that public figures can bring. So public figures are typically political figures, or those that have become involved in a public issue or debate. While cases have found some celebrities at some times to be public figures, the vast majority of defamation cases involving celebrities do not involve constitutional questions.

So what rights do extended families hold to a deceased celebrity’s life story? The answer is basically in two parts. First, we should address the rights that the family members may have inherited from the celebrity. Many rights to intellectual properties, including life stories, can be transferred by will or inheritance in the same way as any other property. So copyrights, trademarks, and rights of publicity can all be held by extended family, provided that such rights were transferred to them from the deceased.

The second part addresses what rights that extended family member might hold personally, by being part of the story. So, for example, if the extended family member appears in the story being told as a character, then that person will have privacy rights, defamation rights, and their own potentially copyrightable stories, which they acquire by basically being in the right place at the right time. These rights are not going to be administered by the Estate of the deceased celebrity, because the rights are personally owned by the relatives. This can be a benefit to a project, because it is sometimes possible to acquire the same story rights from another family member, rather than through the Estate.

Regarding the duration of protection for life story rights, I already mentioned the general standard for copyright duration above. However, trademarks do not ever terminate, provided the marks are continually renewed. This can apply both to celebrities’ names and likenesses, as well as characters in famous works. So, for example, the character of Peter Rabbit was first published in 1902, and is officially in the “public domain”, yet in August of 2003 a publisher (in China no less) was fined $42,200 for publishing an un-licensed Peter Rabbit book based on trademark law, not copyright infringement. UK based Frederick Warne & Co Ltd holds international trademarks on the Peter Rabbit character.

Likewise, the Estate of Mark Twain still protects the likeness, name and signature of Mark Twain, and exercises considerable control over publishing works by the author that died in 1910.

While there are some rights that will terminate on the death of the celebrity, such as the rights of privacy held by the celebrity him or herself, other rights can theoretically last perpetually, such as the right of publicity. Certainly there are many Estates, including those of Marilyn Monroe, Elvis Presley, and even Salvador Dali, who will protect the images, likenesses and stories for as long as there are fans that remember them.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

Question:

Been working for several years to raise the budget for an indie feature I plan to direct. At one point had full budget raised through private investors but it fell through. Now we’ve got about 20% committed but no other investors lined up. Two questions: 1) How can we find financing for the remainder and 2) Can we lock in the Section 181 deduction even if the investors only come up with partial financing?

Answer by Brandon Blake, Entertainment Lawyer:

One of the big changes to effect film and television finance since 2008 is that now days it is rare for any one form of financing to make up 100% of the budget of the project. From studio features and network television to SAG Ultra Low Budget projects, producers need to turn to hybrid financing to get the project made.  Most investors and financiers are looking to spread risk and minimize losses, while still being exposed to the potential high returns of a blockbuster feature film or television series.

Private equity financing for feature films is picking up, and there is quite a bit of investor interest being stirred up by the renewal of the American Jobs Creation Act, (AJCA) Section 181 tax deduction. The magic figure for investor or private equity financing is about 20% of the total budget. If a producer can raise 20% of the budget of the film, our firm can generally help find industry financing to fill in the “gap” left over. While 80% seems like a large gap to fill, between State and International tax incentives, debt financing and collateralization, co-production partners, and foreign pre-sales that 80% can often be covered.

Looking in more detail at the hybrid funding options, the first step of course will be State and International tax incentives. Certain countries around the world are still offering tax incentives and credits as high as 50% of the budget of the film, if produced entirely with local talent, while states like Louisiana have added new tax incentives that can add up to 40% of the budget of a film shot with all-Louisiana crews. Even California introduced a 25% tax credit for relocating a television series to California. Moreover, there are more opportunities than ever today to monetize state tax credits and incentives, so that those funds can be spent as part of the budget, or even for pre-production costs.

Debt financing has become increasingly important to financing feature films and television series, and collateralization has replaced the old negative pick up deal. What does that mean? By shopping a feature film or television series to studios and networks, producers can convert the interest of distributors and networks in the project into cash for the production budget. With more banks then ever willing to lend against films and television series collateralized with Network deals and distribution guarantees, it is possible to raise a substantial portion of the budget through debt financing. Additionally, collateralization need not be exclusively provided by the distributor of the projects, and many creative deals are possible through other forms of collateralization.

Additionally, foreign co-production partners can provide either financing or in-kind service to projects, eliminating much of the below-the-line cost of producing a film. Large studio productions have used foreign co-production partners for years, and the trend is only increasing as many Asian markets become primary markets for film and television projects.

Finally, foreign pre-sales can still be a valuable source of finishing funds, with perhaps 10% to 20% of the budget available through foreign pre-sales. While lenders now typically discount the pre-sales agreements, there are still many funding opportunities available through pre-sales arranged at major film and television markets.

Regarding the second question about the American Jobs Creation Act Section 181 tax deduction, there is no requirement that equity financing make up 100% of the budget of the film. Provided that at least one day of principal photography starts in 2016, Section 181 tax deductions can be locked in for subsequent years of production. However, the project must qualify for Section 181 and the offering must be organized in such a way that the investors can take the deduction against their taxes.

As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer