QUESTION FOR FILMTVLAW.COM:

I’ve been noticing a lot of indie films at my local theater, and it’s not any kind of an arthouse either. It’s a big multiplex but it’s showing about 5 different indie films. How do I become a part of this?

ANSWER BY BRANDON BLAKE, ENTERTAINMENT LAWYER:

Indie filmmaking is undergoing a renaissance today and becoming more mainstream than ever as indie hits and obscure titles have invaded multiplex theaters across the country. It’s arguably one of the best times ever to get an indie feature film seen. But where do you start and what does it take to get noticed in the indie filmmaking world today?

In addition to this article, I share more than a hundred in-depth entertainment industry articles on my website at www.filmtvlaw.com/entertainment-lawyer-qa. Please also check out my bio at www.imdb.me/brandonblake.

How We Got Here

It wasn’t supposed to go this way. If you can still vaguely remember the “COVID” era, we were all going to be living in bubbles and watching 24 hour a day Netflix streams. But post-COVID and post-strike, people began to emerge from their bubbles and started going out again.

Then a funny thing happened: Studios cut down the release window for theatrical features by more than half in an attempt to feed the studio-owned steaming platforms and keep all those premium viewers happy. Combine that with a dramatic cut in the number of studio features being produced and we ended up with a giant vacuum of content for multiplexes. Fewer films showing for less weeks, means a lot of empty theaters.

In steps opportunity for the indie filmmakers and the specialty distributors and studios who have been filling the empty screens with original, new content that to everyone’s surprise viewers have loved. The era of wide release indie filmmaking is upon us.

How Do Independent Films Get Developed?

It is increasingly rare for any movie to be developed in-house, both studio films and independent fair alike. Every film put into development represents a big investment of time and money on a project that is not guaranteed to gain audience traction or, indeed, ever reach the release point of its development cycle. Studios are interested in well-established IP or well-known brands with a pre-exiting audience, so they have been bowing out of “original IP”, meaning anything that doesn’t have a forty or fifty year track record in publishing, series television or film.

 To be even more specific, according to industry figures, only 10% of films with original scripts developed between 2022 and 2024 benefited from strong in-house development support at the executive level from MPA member companies. These often represent the “Originals” on Netflix and Amazon, while a few like Cocaine Bear end up becoming unexpected theatrical hits.

 The vast majority of films greenlit with original scripts, however, either got set up at specialized Hollywood divisions (Focus Features, Searchlight), were festival acquisitions, or otherwise came packaged with name directors and talent. Even the specialty studios, like Neon and A24, generally do very little internal development. They are relying on the producers to bring them packages on a silver platter, ready to greenlight.

 A big part of the reason is economic. Many of the indie studios and specialty distributors are simply not set up for, nor capable of investing in, major in-house development work. Recent examples include Neon’s latest blockbuster hit, Longlegs. With a breathtaking $104M at the box office, this breakout hit for Neon was not developed by Neon itself. The film came in financed by C2, with an A-list cast already attached, and Neon acquired it in 2023 at the European Film Market as a package from Black Bear. This is an example of an awesome indie development coming together and generating a bidding war, with Neon being the eventual winner.

A Need for Originality… And Cast

Anyone who has been to a movie theater lately knows that a wave of original films is just what the entertainment business needs right now. The legacy titles based on movies, books, TV shows and even car brands of 50 years ago can only take us so far, and the monotony of it all has opened a path for new, original creators and stories.

However, there’s a big difference between a gorilla-style indie with no-name cast and a first-time director, and a truly viable indie with major box office potential. First-time filmmakers with nothing but a camera and a big idea are great (I worked with Daniel Myrick who pulled off one of the greatest indie feature successes of all time with “The Blair Witch Project”), but those are few and far between, and producers who want to get original films on screen, but utilize great cast and directing talent in the process, need to blaze a trail in between the Studio echelon and the no-budget filmmaking of the 1990s.

Capitalizing on Passion

Unless you are planning a micro-budget festival piece, you are going to end up needing more than just passion to make the film a success. The costs involved with developing original IP are the reason why studios don’t do it anymore. Development includes everything from the script and deck, to attaching name cast and director, and getting that project in front of production companies, distributors and financiers. It’s a lot of man and woman hours. While some of it can be done by a highly motivated filmmaker (with a lot of free time), certain things like attaching cast and a director, and getting to distributors and financiers can’t be done without a certain level of development financing.

Bootstrapping a great script into a $10 million dollar check is not a realistic strategy for developing a viable, theatrical feature film. So, for the financially strained filmmaker, the first stop might be a “friends and family” round of financing where you turn your passion into a capital foundation to support your feature project.

Pitch Perfect

When it comes to bringing the collaborative power of cast and directors to an independently developed feature, pitching once again takes central stage.

Gone are the days of “Swimming with Sharks” filmmaking, where one perfect pitch lands you a $50 million production/ distribution studio deal. Instead, imagine 50 or 100 perfect pitches, to everyone from agents and managers, to production companies, financiers, theatrical distributors, streamers, foreign sales agents, etc. Everyone needs to believe in and understand the project that the producer wants to create.

So, building the perfect wide-release independent feature involves a lot of pitching. I’ve been in the room for hundreds and hundreds of successful and unsuccessful pitches to all the parties mentioned above, so I have learned from experience what works and what doesn’t. That’s a knowledge that I’m happy to share, and I’m starting a Pitch Coaching Workshop that is no-cost, because I want to see everyone hit it out of the park when they get their big break. With so many costs for indie filmmakers, it’s great to be able to give something back to the indie community.

You can sign up for my Pitch Coaching Workshop here: https://www.filmtvlaw.com/pitch-coaching-workshop

There are a limited number of spots, so don’t wait to take advantage of the opportunity.

As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available at www.imdb.me/brandonblake.

About the Entertainment Lawyer Q&A:

The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.

QUESTION FOR FILMTVLAW.COM:

With the SAG strike ending so late in the year, is there anything left I can do to get my production off the ground, or is everyone going to wait until 2024 to do anything? Glad it’s behind us but now what?

ANSWER BY BRANDON BLAKE, ENTERTAINMENT LAWYER:

The WGA strike and SAG strike were historic in a lot of ways and let’s face it, a lot changed during these past six months. I think that the business is going to come back strong and the news I hear is that studios and networks want to make up for lost time.

The combined 2023 WGA strike and SAG-AFTRA strike lasted from May 2 (the traditional start of pitching season) until November 8th, the 6 busiest development months of the year. But the development executives at the studios and production companies I have talked with say they plan to work through December and January to make up for the delays, so this is no ordinary winter in Hollywood.

In addition to this article, I share more than a hundred in-depth entertainment industry articles on my website at www.filmtvlaw.com/entertainment-lawyer-qa. Please also check out my bio at www.imdb.me/brandonblake.

The 2023 SAG Strike is Over

The longest SAG strike in history is over, with apparently some solid gains for SAG-AFTRA members. I think the biggest failing by the union was not to better explain what was at stake regarding AI.

Knowing now that the AMPTP was trying to use the strike as an opportunity to increase studio control over celebrity likenesses, it’s not hard to understand why the strike went so long, or why the top performers were the most concerned by the attempted AI rights grab.

This wasn’t about introducing AI into the production and post-production workflow, which is inevitable. It also wasn’t about maintaining the status quo. It was an opportunistic attempt to use AI as a rational for the studios to take control of performers likenesses, apparently at one point in perpetuity.

Up until now, likeness usage was licensed per use (one film or episode), and otherwise controlled by the artists, not by the producers. If the studios indeed tried to overthrow the past working model on likenesses, it was a surprising power grab by studios that seems to have been averted.

So Now What?

The race is on to develop the 2024 television season, as well as to get into production and post on feature films planned for next year. There is a lot of work to do, and also a skeleton crew left at many networks and studios, as there were quiet rounds of layoffs throughout the year.

Is anyone expecting to get in 6 months worth of pitches and development before Thanksgiving or even Christmas? No, not from what I hear. Although the idea of “going to market” in late November and December sounds unusual, that is just what is happening this year, in response to the massive disruptions and also the mandate from the studio heads to preserve next years production cycle.

Opportunities

There are opportunities for independent producers and writers, if you can get out there immediately. Most of the major production companies and studios are still a little shell-shocked from such an unexpectedly long strike, especially with both of the major Guilds out of commission for the busiest part of the year. Added to that they are short-staffed, so there is the real opportunity to get developed projects to networks and studios before the big players have a chance to do it.

Added on to that, while the SAG strike is over and it is legal for performers to go back to work, there is not yet a new Basic Agreement. Additionally, Union members will still have to vote to ratify the agreement, which will take a few weeks.

Financing

While there are opportunities in every circumstance, the end of the WGA strike and SAG strike certainly brings back a level of confidence to financiers. Although there were ways to move forward with the Interim Agreement, there was also a shadow of the strike hanging over the heads of potential backers. What if the strike had lasted as long as the WGA battle with the agencies? Would there be distribution for films produced during the strike?

All of those questions are settled now that Hollywood is finally getting back to work, and that can provide feature film investors with some peace of mind when deciding to back a new project.

Better Late Than Never

While everyone would have preferred for the SAG strike to end right after the WGA strike, it still feels great to finally be on the road to production and distribution of new film and TV again. And although late in the year, we are going to see a pitching season that probably extends into January and beyond. And with streamers often taking a year-round approach, this will be business as usual for a lot of companies.

As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available at www.imdb.me/brandonblake.

About the Entertainment Lawyer Q&A:

The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.

QUESTION FOR FILMTVLAW.COM:

Hey, I heard like over 100 feature films are in production right now? I’m an indie producer and have been in limbo all this time cause I thought we had to wait to start development till the Screen Actors Guild Strike ended. What’s going on?

ANSWER BY BRANDON BLAKE, ENTERTAINMENT LAWYER:

Appreciate the great question about the ongoing SAG strike. I’m a big supporter of the Screen Actors Guild, which has done a lot not just for actors, but together with the other guilds has made film and television one of the only creative fields where artists can earn a living wage.

Despite the strike, SAG has provided a way for indie filmmakers who support SAG and will agree to the new Basic Agreement to keep making films, even while the big studios are sidelined! It’s one of the best moves the Screen Actors Guild ever made, and it sends a huge signal that they really are the good guys in this whole process.

SAG is taking a page from the WGA playbook during the WGA’s brilliant campaign against the agencies, where the WGA allowed agencies to sign individually to the new agency agreement. First the little independents signed, then the medium sized firms, and eventually it was just WME and CAA that were locked out of representation of WGA writers, and so they signed too.

In addition to this article, I share more than a hundred in-depth entertainment industry articles on my website at www.filmtvlaw.com/entertainment-lawyer-qa. Please also check out my bio at www.imdb.me/brandonblake.

The 2023 SAG Strike

An Update

For anyone who has been living under a rock, or in production in Antarctica for 6 months, we are more than a month into the Screen Actors Guild strike, and all studio film and television production has been halted. SAG is on strike for some very basic cost of living increases, and to address the potential for AI to become a real problem in terms of reproducing the likeness, voices and performances of actors without compensation.

However, there are hundreds of feature films either in production, or that have signed the Interim Agreement and that will soon go into production. These are all independent projects, that do not have distribution or financing through AMPTP (Alliance of Motion Picture and Television Producers) companies.

This is all part of the SAG strategy to isolate the major US studios and put pressure on them to sign a new Basic Agreement with SAG, while at the same time keeping actors working.

The Effect

SAG’s strategy has already created a renaissance in independent film production. Why? Because all of a sudden independent filmmakers without access to studio financing can cast literally the best actors in the world. SAG members understand that by supporting independent film, they are supporting the strike and working towards better conditions for all performers.

There is no better way to say it than that for independent filmmakers, the 2023 SAG Strike is literally the best thing to happen in over a decade. As filmmakers have been struggling against streamers, who have yet to replace the financing that came from the home video market, and then the COVID shutdowns that made independent productions almost impossible, indie film has had a rough ten years.

The effect of the 2023 Strike by SAG is also going far beyond just casting, unlocking new financing for independent films.

Independent Financing

Ever since the COVID lockdowns and the closing of theaters, independent filmmakers have been struggling to find equity financing. The reasons were self-evident: While studios could guarantee streaming runs on their vertical streaming platform, independent films would have to be shopped between streamers that already had their own content streams. That put pressure on both production financing and also minimum guarantees for distribution. Streamers are incredibly opaque, and so it is nearly impossible to determine how many views an independent film is getting, and how much those views are worth to the streamer.

Due to anti-trust lawsuits a generation ago, theaters had to publish box office figures, so it was easier for independent filmmakers to judge their success in the market and negotiate agreements that would provide for fair returns for blockbuster successes. This then made equity financing more available because investors would be able to chart the success of the film they invested in and profit if the film profited.

The 2023 SAG strike has resulted in increased equity financing for independent films for multiple reasons:

1)     There is an overall pot of equity money available for film financing. The studios typically take the majority of that pot, around 80% to 90% of it. Remember, studios need equity financing just as much as independent filmmakers. No film can be 100% debt financed. Because of the SAG strike, the US studio share of the equity financing pot is now down to 0%. Because independent filmmakers can still make movies, they now have substantially more financial resources available.

2)     Cast drives financing. Ever heard the term “bankable star”? It’s not just a film-ism. It means that a particular actor or actress is so famous that banks will lend to films, solely because of the cast member that will appear in the film. So, what happens when studios can’t make movies anymore? There are a ton of “bankable” stars that are looking for movies to make, right now.

3)     Demand without Supply: Finally, given that the studio content pipeline of films is now drying up, distributors are looking for new supplies. That supply of films will come from independent producers and from foreign producers. Increased demand will mean higher MGs and bigger acquisition prices for films, as well as more expenditures in advertising and marketing for independent films. All these things create a virtuous cycle for independent filmmakers, bringing in more equity investment, etc.

Interim Agreement

So, let’s take a look at what is making this the best year in decades for independent producers. It is all about the SAG Interim Agreement, which basically provides independent filmmakers a chance to agree to the next Basic Agreement before it is signed between SAG and the AMPTP.

Does that sound scary? It shouldn’t. Because remember, before the next Basic Agreement comes online, it will have to be signed off by the AMPTP. The studios are going to fight for a fair (and then some) deal, so independent filmmakers don’t have to worry that they will be agreeing to an overly draconian SAG agreement.

So far it has become apparent that both SAG and WGA and requesting relatively modest cost of living increases, some working condition changes that don’t affect independent films much, and some guarantees that future AI technology won’t be able to copy writers’ and performers’ performances and essentially re-use them in perpetuity without payment. None of these conditions affect the ordinary independent producer.

However, there was one unfortunate change to the SAG Interim Agreement.

US Production Locations Exempted

Unfortunately, SAG has modified the Interim Agreement to require films to be shot outside the US. That means locations like Louisiana, New Mexico and Georgia will see big declines in production activity because of this decision.

Hopefully SAG will rethink this change, because American independent producers should not be driven to Canada or Mexico to be able to make movies under the Interim Agreement.

Qualifying Under the SAG Interim Agreement

There is not a simple check the box for whether a movie qualifies for the Interim Agreement. It is something that has to be determined by SAG during the signatory process. However, there are several things that SAG is looking for right now:

1)     The film must have access to financing. The usual SAG bond and financial assurances are still required.

2)     The film cannot be directly or indirectly financed by or have distribution through an AMPTP member company. SAG is requiring real independent productions.

3)     The movie must be non-WGA. So, the writer of the literary property cannot be a WGA member.

4)     The movie must be shot outside the United States.

The Time for Independent Film

If you are in development on an independent feature film, contact us and let’s discuss the opportunities. As I delineated above, it’s easy to see why independent film is seeing the best production climate in at least a decade. That’s not to say that the road to producing an independent film is ever easy, but with increased access to cast, financing and distribution, this is the moment for indie films to shine.

As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available at www.imdb.me/brandonblake.

About the Entertainment Lawyer Q&A:

The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.

QUESTION FOR FILMTVLAW.COM:

I’m getting all kinds of mixed messages about the WGA writers strike and I thought maybe a lawyer would be the perfect person to ask about this stuff. I’m not WGA (wish I could be some day 😊) and am a big fan of the guilds, but isn’t there anything I can do as a producer/writer during this strike? Seems like the trades are saying no way, but I know guys that tell me, “If you’re not WGA, don’t sweat it.” Who’s right?

ANSWER BY BRANDON BLAKE, ENTERTAINMENT LAWYER:

Thanks for a great question about the 2023 WGA strike. I usually try not to write articles about short term news items, but since the writers strike is so important to the American entertainment business - and we don’t know how long it could last - I decided to chip in with some analysis about the dos and don’ts of pitching during the Writers Guild Strike.

First off, I want to say that I’m a big supporter of the WGA and of all the Guilds in Hollywood, which have done a great job of broadening participation in the film and television business – benefiting everyone working in the industry, not just Guild members. My comments are coming from a place of support for the WGA, while also wanting to see the US film and TV business thrive and compete internationally in the coming years.

The Writers Guild of America Strike of 2023 comes at a difficult time for showrunners and producers, because right now should have been the official start of pitching season for television. While we don’t know how long the strike will last, we do know that we will end up with a very compressed pitching season in 2023 that will be very active as soon as the strike ends.

But what about before the WGA strike ends? The fact is that, while US scripted television development is very important to the entertainment business, there is literally a whole world of entertainment work going on - in multiple fields - in countries around the world. The strike is only impacting a small (but important) element of it.

In addition to this article, I share more than a hundred in-depth entertainment industry articles on my website at www.filmtvlaw.com/entertainment-lawyer-qa. Please also check out my bio at www.imdb.me/brandonblake.

Navigating the 2023 WGA Writer’s Strike

An International Perspective

The first thing to remember is that the Writer’s Guild strike is an American phenomenon. The global entertainment industry is moving on, such as the very successful Cannes Film Festival this year in France. Across the UK, the EU, Middle East, Asia, Africa and Latin America, film and television is being written, produced and distributed.

If you are an internationally based writer or producer, this strike might have a very limited impact on your activities. The businesses in your home country might be unaffected. Right now, international markets are still full-steam ahead. If the writers strike continues, international writers and producers might see new market potential in the US. That is a reality of the global nature of film and television. The next “Squid Game” is on its way, strike or no strike.

A Legal Perspective

As an entertainment attorney, I also want to address the legal requirements that face writers, producers and distributors during the strike. The Writers Guild strike affects what are called the “signatories” to the WGA Basic Agreement. Signatories include writers, production companies, and distributors that sign on to the WGA contract, as well as some talent agencies and management companies that sign with the WGA to be able to represent WGA writers.

This is a rarified space, with several hundred active production companies effected, as well as all WGA writers and many of the top agencies in the United States. These companies represent the top of the American film and television industry. If you are one of the members of this club, congratulations! You made it, but the strike is going to be a cost of being in this exclusive club.

Any television writers, producers, production companies, agents or managers in the United States that are NOT WGA signatories have no legally binding obligation to recognize the strike.

However, mind that I said legal obligation. There is, however, a moral obligation to stand with those you believe are in the right. That is why some Screen Actors Guild members - and even people who are not in any guild at all - are joining in the strike, picketing on the lines because they feel it is the right thing to do.

Blacklisting

But what about the WGA’s overt threat to blacklist writers who cross picket lines in the United States? Can the WGA ban writers from joining, or take away membership from current WGA members if they break Guild rules?

With regard to WGA members who have signed up with the Writer’s Guild, the answer is yes. The Writers Guild of America can remove you as a member of the Guild, take away your pension and other benefits, and ban you from joining again in the future.

Once a WGA member is no longer part of the Guild, the WGA can also designate that signatory companies cannot work with that member in the future. But if a writer is not already a member of the WGA, the same rules apply. Regardless of whether a non-WGA writer honors the picket lines, a non-WGA writer still cannot work as a writer for a WGA signatory company. So non-WGA writers are barred from work either way.

However, there is always hope of a future membership in the WGA. That’s no small dream for many writers who would like to join that exclusive club. While it is legally a gray area whether or not the WGA can maintain a blacklist against non-WGA writers - case law will vary from state to state - there is no secret that the Writers Guild threatens to blacklist any non-WGA writer that crosses the picket line.

While that is not a place that any aspiring writer wants to get close to entering, the question becomes, “In a digital age, and a global entertainment industry, what exactly are ‘picket lines’?”

Virtual Picket Lines

The idea of picket lines during strikes comes from colorful imagery of the early 20th century, where workers would literally have to cross a line made by strikers that would encircle the factory being struck. The message from the early unions was simple: cross that line of strikers - The Picket Line -  and you are going to face trouble, anything from getting physically beat up by the strikers, to being forced out of town as a “scab” when the strike was over.

But the era of COVID showed that nobody ever has to go anywhere physically anymore. Does a Zoom call “cross picket lines?” What about an email or text message? The answer varies, depending on what that zoom, email, or text contains.

In a large part, today picket lines are symbolic. Getting writers (and actors and other tradespeople) out in front of a studio gets headlines, shows commuters something is going on, and helps to spread the word that the Guild believes writers are being treated unfairly. While trucks ARE being turned around – and productions shut down – by 2023 WGA picket lines, it is not as much of a physical barrier to entry for everyone involved as it once was. Scripts aren’t delivered by hand anymore. Pitches aren’t done in person. That’s all online, with no picket line in the way.

So how, then, does a non-WGA writer honor a picket line which might only exist as a ten second clip on the local news or a photo in the trades?

For those non-WGA writers who do want to honor the picket lines – which makes up all of my non-Guild clients… and probably the vast majority of American writers – the best way to honor the WGA Writer’s Strike is by not taking or soliciting writing work from WGA signatory companies, including by texts, emails, or zooms.

I can tell you that, as a practical matter, American production companies in live-action film and television who are WGA signatories are not actively seeking to hire screenwriters right now, because their development slates are all on hold while they determine how long the strike will go and where advertisers and audiences will be at an unknown point in the future.

Dos and Don’ts of the 2023 WGA Writers Strike

Since so many are asking – and since the question seems so nebulous in some areas, I am offering a suggested list of dos and don’ts. This is not legal advice. They’re guidelines offered for informational purposes to any writer who wants to honor the spirit of the WGA Strike, but also doesn’t want to sit by idly while other writers are out there securing their place in the future pitching lineup.

These considerations are primarily written for non-WGA members, since WGA members can ask their local leaders about what is right to do during the strike.

WGA Members – Ask the Guild for guidance but, without any doubt, pursuing writing work from – or being hired by – WGA-signatory production companies and studios is out of the question. Pitching existing scripts and doing non-writing work for WGA signatory companies is a gray area. Consider contacting the Guild directly to clear a project.

Animation – A large amount of animated television and feature film work is non-union, so it represents a great creative outlet for writers during the strike. During the 2007-2008 Writers Guild Strike, a lot of development and production occurred for new animated film and television series. Many writers are members of both the WGA and The Animation Guild – which covers most animation. The WGA board has stated that they wish for WGA members not to pursue Animation Guild work, but acknowledge that they need to stay true to their contracts that are already in place.

Reality Television – Like animation, most reality television is non-WGA, so writers can put on their producing hats and get out there and pitch new concepts for reality television. Just like during the 2007 Writers Strike, many networks and platforms might turn towards reality to fill content gaps.

International Television – As I alluded to at the start, there is literally a whole world of entertainment development and production going on, and writers should take the opportunity to explore this massive market. The fact is that most successful television series have big foreign markets, and there is no better and more receptive time to explore international sales than right now.

Existing Scripts and Life Stories – WGA signatory companies have currently put their development slates on hold, but fully written seasons and notable life stories might still find interest.  

Development – Why not get scripts and pitch decks ready now? While you are at it, attach cast and directors. Regardless of whether your project is intended for WGA-signatory companies or international audiences, don’t sit idly. Use the time to get your content to a place where it is ready to start pitching the day the strike ends.

Next Steps

Regardless of where in the world you are based, we can help you get your current project in shape to pitch with detailed insight into mandates and markets. We also have access to key creative talent, so contact us about whether now is the right time to move forward with your film or television project.

As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available online at https://www.filmtvlaw.com/lawyers.

About the Entertainment Lawyer Q&A:

The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.

Question for FilmTVLaw.com:

Hi there. I work as a writer and occasional producer in TV, but I’ve been on a hiatus for the last few years. With the demise of agency packaging, it seems like the industry has opened up a whole lot, and I need to get up to speed on the shift. Would you mind digging a little deeper into the changes and new potential out there for people like me?

Answer by Brandon Blake, Entertainment Lawyer:

You are right, some big changes in the past two years. There’s been a landmark shift in how business gets done in Hollywood since the successes of the protracted WGA writers’ strike in 2020-2021. I’ll go into a little more detail on it in a minute. While it created a huge change in how business gets done in Hollywood, it was very much for the best, not only for WGA and non-WGA writers, but for the industry as a whole and the way independent television development works. If you’d like to stay up-to-date with these sorts of shifts in the entertainment industry, you’re welcome to spend some time with my other in-depth entertainment industry articles at https://filmtvlaw.com/entertainment-lawyer-qa.

Recapping the 2020-21 WGA Strike

To recap for any other readers not in the loop, the WGA enacted strike action sought to bring an end to the then-common practices of paid packaging and affiliated production. Lasting an epic 22 months, a key cornerstone of the action was removing an ‘agent’s right to negotiate packaging fees’. They also wanted to see a reduction in the interests of agencies in production houses- which, as you can imagine, led to a rather self-serving cycle where cash flowed only one way.

WGA-affiliated writers were told to avoid using agents who hadn’t signed the new agreement. With all of the then-’Big Four’ having significant interests in the production side of the business, the strike was a protracted one indeed, with the major agencies being the key holdouts. Eventually, each signed their own version of the deal, requiring them to reduce production interests to under 20% and cease packaging. The WME was the last to sign.

Why Was It Needed?

As you can imagine, agents are well placed to ‘package’ differing talents together, as they can represent cast, writers, and more. In theory, packaging wasn’t a problem- it was simply the process of matching talent with writers and presenting a ‘bundle deal’ to the production companies, studios, or networks. That’s why packaging per se isn’t dead- in fact, it can still be a bonus for some indie script pitches- but the key word was paid.

The problem arose due to (somewhat hidden) conflicts of interest, where the production companies/studios were paying for the packaging. This created an atmosphere where it was possible the agent was working less in the writer’s best interest (hunting the best deal) and became more about working on the production side as an extension of the studio. Being well positioned to guide a project through development is fantastic, but not while working against the primary client’s best financial interests.

The Current Landscape

With this shift, we return to a place where agents are working not for production companies, but on getting the biggest fees possible for their writers. Whether packaging did disproportionately affect writers specifically, as the WGA claimed, can be debated- but the overall result is a healthier atmosphere for everyone, including those involved in independent television production and development.

Firstly, it makes finding agency representation a bit easier for writers, if that’s a route you want to go, as onboarding talented new clients has moved back to the agencies’ main prerogative. More importantly, however, writer-producers in the indie industry can still leverage the benefit of ‘packaging’ their works with an interested cast. Studios do like having the burden of gaining interest in a project removed, after all, as it makes their lives easier and the project more viable for them. Nor does it short agents, as renewed demand for their client list will finally be seen as a good thing.

So it wouldn’t be hyperbole to say an unintended side effect of the WGA deal was opening up an entire new era in independent television development.  

What About Production Companies?

Plus, the production companies don’t lose out, either- and the playing field is a lot more level for smaller companies. Under the old system, you would be locked to the directors, cast, and writers represented by just one agency (and thus heavily favoring larger companies). This need to have everything repped by a one-stop shop has fallen away, in-house production companies are rarer and with less agency interest, a better balance can be struck.

Again, this makes a particularly favorable shift for indie outfits of all sorts, which now have a much better chance of getting that coveted ‘foot in the door’. Now, instead of being in a quasi-investor role, forced to only accept what agents bring to the table, production companies can fully control their own development and packaging and invest in the product.

The Role of Representation

However, to make the most of the new era of independent television development we are now in, quality representation of some sort is a must. Most networks and studios will only work with proposed packages from known representation they have worked with before, for liability reasons. It no longer has to be an agent- a great entertainment lawyer will open as many doors (if not more) than the classic agent structure on the development and producing side of things.

I have personal contacts through almost every major network and studio out there, and their top executives will happily pay attention when our firm submits. In fact, few entertainment legal firms have the depth of relationship and scope of contacts I do. Let alone in as many fields- I’ve handled everything from dramatic and comedy series for networks and streamers through to feature films, docuseries, and reality work.

So if you’re looking to self-develop your next indie TV product, feel free to get in touch. As always, I provide these articles as general information, not specific legal, tax, or accounting advice. So always seek your own experienced and individual legal counsel before making financial or legal decisions.

Question for FilmTVLaw.com:

This is a question I’m sure you've seen before. However, I have a project with solid potential in the works. As it stands right now, it could be well developed as either a TV project or a film, and I’m not too sure which way would be best to pursue. Friends, even some in the industry for years, seem torn, and some have even suggested trying for both. I worry that that would split my focus too much, honestly.

Do you have any advice for this situation? What is my best bet to get this project into production?

Answer by Brandon Blake, Entertainment Lawyer:

Great question! This is something of a million-dollar question at the moment, and you are right- you won't be the first (or the last) to face this dilemma. As we see so often in the entertainment industry, there’s no one-size-fits-all solution, either, and many factors can affect your ultimate decision. However, as someone who works very closely with both studio execs and networks/streamers, I do have some insights I can share with indie producers like yourselves which I hope will offer you some guidance on how to further develop this project. If you have any other questions on the entertainment industry, you’ll find a host of other tips at https://filmtvlaw.com/entertainment-lawyer-qa to help.

Now, on to your question.

TV vs Film Development

No doubt you’re already aware of some of this, but let’s start with a review of the basics. Feature films, of course, are developed as a single production, with a format over 80 minutes in length. When developing for TV instead, you are looking at an episodic format in the 30-60 minute range, with scope for expanded storytelling but a need to maintain the speed of pacing and audience interest over a far longer total runtime while still delivering satisfying chunks of action throughout each episode. Short run series keep getting shorter, but 6 episodes is still a good minimum target.

Perhaps I should also mention that, while 10-15 minute episodes can be found for some animation and children’s formats, it’s seen as the hallmark of the web series rather than a serious TV contender. Developing as a web series will typically lock you out of network interest and distribution via a streaming platform.

Your friends advising simultaneous development have either been misinterpreted, or have the wrong idea of how that situation could work. Some producers will choose to first aim a story with extended potential at the feature film market, with the hopes of it then moving into a ‘spin-off’ style TV series. You need only look to the Marvel franchise for many examples. If you decide this is the future you’d like for your work, your focus should be solely on developing a compelling feature film, not developing the series alongside the film.

We do sometimes see ‘advice’ suggesting that an 80-90 page film script could also be pitched as a TV pilot. I advise against this. Serious producers know that there’s a world of difference between a 90 page pilot and a 90 page film (and pilot’s shouldn’t be 90 pages). You’re better off choosing a solid direction and working to showcase your project to the best for a specific format rather than trying this attempt to cover all bases.

What the Market Says

Now onto the meat of your question. You will see that most advice on similar topics focuses heavily on the market and current trends. And that should definitely inform part of your decision. Having financing and an audience that’s open to your work matters. However, there are other factors that should also influence which you choose, and it’s important not to lose sight of them chasing trends. Market realities matter, however.

Right now, the streaming platforms themselves are chasing high-value content. Especially as the initial streaming boom of the pandemic settles down, and we reach the ‘crunch years’ that will sort out which streamers survive and sustain their subscribers, and which fail or become relegated to the B- and C-tiers. They want full content rosters to fill their screen time and draw in new eyes to the service.

Series obviously have an advantage here. Not only do they offer hours more streaming content, some believe that viewers become better ‘invested’ in series-style programming, and are more choosy with what features they will consume.

In the recent past, I would also have advised that financing can be more difficult for features, as the typically higher budgets require investors with private equity to boost your coffers. The evolution of so-called ‘top tier’ series formats with immense budgets (think Game of Thrones or Rings of Power) has muddied this a little. However, we’ve also reached an era where streamers are willing to invest that heavily in one or two anchor series like that, but they still have more scope for mid-tier solid and dependable series. The non-blockbuster film market, on the other hand, is a sector that's been slow to recover.

However, you’ve likely noticed that more indie films get made (still) than TV series. Despite the smaller market and tighter financing, there’s a lot more competition for those spots. Also worth noting is that TV series currently rule the viewer metrics. It’s rare to see a feature film on the Nielsen Top 10 list for a week or even the month period currently.

So from a pure market perspective, TV looks increasingly like the way to go.

The Development Process

But the market isn’t everything. Your creative process matters too. Delivering a sloppy TV pilot that could have been an excellent feature film will do you no favors. Consider:

●       Length and Format: Do you have the means to create at least 6 hours of solid content in the series format? Not every idea can stretch easily, and good series are not just over-length movies.

●       Budget and Time: If you have the means to supply or raise part of the budget (think 20-50%) for a feature film, you can get the cameras rolling in a surprisingly short time. TV shoots take longer to develop, green-light, and shoot.

●       Cast: If you’re craving top-tier cast, know it’s nearly a necessity in the indie film market. You will need contacts (like a law firm like ours) to source that cast. And with A-tier casting comes the expectation that you will cater the role to their tastes. Cast is still important to series too, of course.

Last, but not least, there's the story. Film has a reputation for tighter, more contained storylines. But some stories and characters are better developed over the length of a series. Sometimes, you will find film producers dismissive of that, with a greater focus on financing and planning than the script itself. It's not a given, of course, but this is creating a trend where the better stories are now being told in series formats. Films are increasingly about fast action and solid backing from cast and financiers.

By carefully evaluating these key areas and considerations, you should arrive at the right direction to pursue for your own project. Of course, I can only offer these tips and insights as general information, and you shouldn’t consider this project-specific advice. Always seek experienced entertainment legal counsel before making financial or legal decisions.

Should you need help bringing your project to life on major streamers, networks, and studios/production companies, our firm is well placed to help you make the connections you need. Feel free to reach out to us about your TV or film development representation as you need.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I’m a young writer with a TV pilot script I believe has great potential finished and ready to shop. However, I’ve had some more experienced writers already in the industry warn me to protect my script before I do so. However, no one’s advice seems consistent. What is the best way for me to look after my rights while still getting this script to the eyes of the people needed to take it to the next level?

Answer by Brandon Blake, Entertainment Lawyer:

Thank you for a very solid question! As an entertainment attorney with several decades experience, this delicate balance between protecting the rights of my client’s work and helping them get their projects to life on the right network or production company is a key concern I keep in mind. If you’re curious about other matters we handle regularly, you can always dive into the other entertainment law industry articles we have here at www.filmtvlaw.com/entertainment-lawyer-qa

But back to your question. What steps can writers take to protect themselves while shopping scripts, especially for TV series? Of equal value, what isn’t recommended before pitching?

This is a question that’s even seen some recent press time, as we’ve seen the WGA win several landmark arbitrations around writers and scripts of late. While the ‘self-dealing’ residual issue recently raised with Netflix is more a matter for writers with scripts actively in production and how they are paid for it, you may want to familiarize yourself with their win on what classifies as ‘active development’. This enacts further protections for writers who successfully pitch and sell a script, but see the project languish without pro-active attempts to finish it. It also gives you, the writer, greater powers to ‘recover’ that dead script and sell it somewhere where it can come to life.

But let’s look at the protections you need to get it there, first.

Can You DIY?

Unlike many entertainment legal issues, there are some things you can do to help yourself here. Filing copyrights at the US Copyright Office (eco.copyright.gov/eService) has become surprisingly streamlined of late. There’s no reason not to do this, whether you plan ahead before you start shopping or do it now on a project you’re already shopping. They have fairly solid guidance, and it’s pretty easy to do.

It’s an easier process than Trademark Applications, but they have also gotten fairly fussy about ‘Works Made for Hire’, so if you prefer, you can use a legal service like ours to help you choose the right options for your work.

The WGA

If you are already a WGA member, WGA registration of your script will be mandatory. While it’s been seen as the default protection for scripts even if you aren’t a member, however, it can be a false sense of security. Why? Because there’s no statutory protection, and there’s a fast expiry (5 years). Few remember to renew the registration, and sit with unprotected scripts.

NDAs (Non-Disclosure Agreements)

No doubt NDAs have been among your peer’s recommendations. Some producers and writers believe that NDAs need to be signed by anyone reading the script.

And yes, they are a powerful level of protection, as you end up with a signed contract detailing your expectations- everything from the idea to the title, which cannot be protected by copyright law. However, most major production companies, networks, and studios simply won’t sign one before looking at an outside script. Many will flip the idea on you, and require a submission release that limits your rights to sue in the event of plagiarism/infringement for the idea.

Sadly, there’s little an individual can do about this. For every firm that will sign, five more will not. For TV pitching especially, this can damage your odds. This is one of the key reasons for using legal protection on your side-an entertainment law firm like ours- instead of DIY pitching.

Trademarks

Trademarks can be of use for aspects of your IP in a TV series. For example, if the title is of particular importance, or you’ve created unique logos, characters, or designs that qualify for protection. Animated projects might consider this for character protection, and reality series might consider this step in some events since less of the overall pitch materials can be copyrighted.

Why Entertainment Law Firm Representation Gives You the Edge

Blake & Wang P.A have never had a client’s feature or series project plagiarized or even infringed. One of the best things you can do to protect your IP rights to a TV series script is use proper, informed legal representation to help through the pitch process.

Consider the power you will have in using a third-party in your submission- one keeping detailed notes about what has been submitted and to whom. Now consider that they are a law firm, with full ability to enforce their client’s rights in front of a court- how likely is it someone will take the chance on infringement?

Additionally, unlike the non-disclosure, major production companies, studios, and networks like it when clients come to them covered by respected entertainment law firms. Having a respected legal practice at the table gives both parties greater confidence that they are dealing with mature, trustworthy and serious parties who are above-board and dealing in good faith. It’s a win for everyone.

Should you need representation in television pitches, or copyright and trademark law, feel free to reach out to our firm about your needs. Remember, we can only provide these articles as a general source of information, they do not represent tax, accounting, or legal advice. You will need experienced entertainment legal counsel before making legal and financial decisions.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

With the John Wick franchise remaining as popular as ever, and some major movement on the Lionsgate front in recent months, how do I get my own project through the Lionsgate door? While I’m not new to the filmmaking market, I’m keen to take my work to a higher level, and as one of the most compelling and active ‘smaller big’ names in Hollywood currently, I feel like they’d be ideal for my new work. Any advice you can offer? And thanks for the fantastic content!

Answer by Brandon Blake, Entertainment Lawyer:

Another great question! As always, thanks to everyone who’s been so active with questions and comments on the blog. While I can’t get to every one of you, I felt this one would probably resonate with more than just the commenter. Of course, they (and you all) are also welcome to check out my other Q&A sessions right here at www.filmtvlaw.com/entertainment-lawyer-qa . You’ll find it packed with entertainment related advice and articles just like this.

Luckily, I actually have first-hand experience working with the Lionsgate teams. And you’re quite spot-on with that description. Despite being one of the younger of the major Hollywood studios, Lionsgate offers a compelling balance between ‘big enough to get things done’ and ‘small enough to take interesting chances,’ and they’re much more willing than some of the other Hollywood names to take chances on new IPs and interesting projects with potential. With some Hollywood staple franchises in the bag- alongside John Wick in his many incarnations, the Saw films retain evergreen popularity on the horror market, as does the Expendables franchise in the action market, and they have many other beloved IPs in the bag to match. We’ve recently seen them start to get a little more aggressive on the streaming front, too, with a push to elevate their Starz platform (now rebranded as Lionsgate+ outside the US) into a more solid streaming competitor, and some interesting partnerships with the UK’s Sky to push into the booming European streaming markets.

But before we dig too deeply into Lionsgate itself, let’s step back and take a broader look at how agencies and studios like Lionsgate partner up to push TV and film projects into their studio ecosystem. Then we can double back to breaking into that loop as an independent creator or producer.

Agencies act as the typical launch point for the flow of stories and scripts to studios, production companies, and networks. Packaging, while not as dominant as it once was, allows agents to get other interested parties (especially A-list talent, known directors, and other people with ‘name recognition’ and existing fans) on board with a script or idea. This is often done through in-house project shopping to start, allowing them to bring in current clients that have interest in the project.

Once there’s enough ‘evidence of interest’, as it were, these agencies then push the project in front of interested studios, focusing on producers and acquisitions execs who like to work with similar genres or projects. If the producer/exec bites, there’s a similar repeat of this in-house shopping, where they approach others within the studio ecosystem to drum up interest. Once it has enough momentum to sell itself, it will be bounced to the CEO and President of the studio for a true green light.

With so much of this done internally, it can be difficult for indie operators to ‘break in’ to the loop. Luckily, there’s a lot that independent producers who want to further their scripts and projects can do.

Obviously, making the most of packaging helps. I’ve worked with clients before to bring in A-list interest (perhaps under the Lionsgate circumstances I should point out a client and I brought Keanu Reeves on board to a project before) during the development phase through my personal contacts.

With that in the bag, it is easier to draw in major agency interest to the writer and producer, too, adding fuel to the shopping fire. By doing this ‘legwork’ for the studio development execs, bringing them not just a solid script but interested talent with a stake in the project’s success, you make your project much more compelling than the pile of other great scripts sitting on their desk, and you become a prime candidate for green lighting.

So, to offer some more focused advice:

1. Write a Great Script

Obvious, yes, but you’d be surprised how often this isn’t in place. If a major studio like Lionsgate is looking for purely speculative material and nebulous ideas, they have enough talent in-house to get the job done without looking at indie creators.

Only when you have a fantastic, fully actualized script should you look to add to it with solid basic promotional materials- look books/pitch books, websites, posters, and a great one-sheet of the best quality.

I have 2 decades of experience in the entertainment business, and I can assure you- I can often tell what projects will get attention from the script and promo materials alone. That’s how important this is. You’ll see a lot of talk about ‘bigger’ promos- think trailers, demo reels, sizzle reels, and pilots. Sure, these are great additional materials- if you already have the ability to exactly produce your material at broadcast quality. If the studio is going to have to ‘imagine’ what you could do with a better budget, skip it and stick to the solid essentials you can produce well. They can imagine their own content. You need to sell them yours.

None of it is worth anything without a script that looks and feels production ready, so don’t waste your time elsewhere until that’s in the bag

2. Know your Market

Learn everything there is to know about the market for your project- especially the cast, the directors, and the production companies, studios and streamers that can make your project a success. Note that is the very first step we take when we represent a new client, and it’s a critical one.

You’ve got your eye on Lionsgate specifically, so I assume you’ve probably done some of this legwork. Redo it again, and then consider another pass until you know them and what they like inside-out.

3. Partner Up

Now is the time to start attaching some enticing cast and a director. Sure, you won’t be bringing the entire cast of your show (we presume) to the table with you, but being able to show actionable interest from key entities makes you that much more appealing as an independent project to the studio. If you don’t have the contacts, our firm can do the heavy lifting on this step and start getting your project to major name talent.

4. Find Your ‘In’

Get the project to the right people responsible for green lighting film and television at the entity of your choice. Step 2 should have helped you narrow this down a lot. A solid partnership with a firm like ours, which has these existing relationships in play to leverage and go to bat for you, can be very helpful.

Feel free to contact our office about rates for our packaging and representation services, and please do not decide about complex entertainment legal matters without consulting an experienced entertainment lawyer first. At BLAKE & WANG P.A. I have been representing feature film projects and television series for more than 22 years. Please feel free to contact my office at www.filmtvlaw.com to find out about our availability.

QUESTION FOR FILMTVLAW.COM:

Hi. What’s your thoughts for TV pitching season in 2022? I’ve heard it’s starting soon, but am not sure when is the best time to take my current projects out ‘into the world’? Is this even something to worry about with streaming networks?

ANSWER BY BRANDON BLAKE, ENTERTAINMENT LAWYER:

This is a great question about pitching in 2022 and pitching in general, thank you!

Traditionally, the Upfronts wrap up the third week in May, after which pitching season kicks off as execs get down to finding the right projects to develop for their network over the next year.

What to Expect For 2022 TV Pitching Season

While we’re still feeling some echoes from the pandemic, a lot of things have gone ‘back to normal’ across the industry. This year, the Upfronts are planning to go back to in-person events unless something very disruptive occurs.

Do they matter in the era of year-round streaming? While the window to pitch has certainly opened up, and you’re going to be able to get some industry interest at all times of the year, it’s still a mistake to dismiss broadcast and cable linear TV.

Also, we’ve seen a big move very recently into the Upfront space for YouTube this year. While it’s not the first streaming network people think of, YouTube has come to dominate with a big chunk of viewership. Plus, of course, where one streamer goes we will soon see more and more enter. There’s also a lot of cross-over in this space, and many streaming hits continue to start on a cable or broadcast network.

Overall, as we’ve also seen big players in the industry reform around the streaming model, many ‘traditional’ TV spaces are blurring with streaming more and more, and it’s not unreasonable to anticipate that this will continue as the kinks are ironed out of streaming as the go-to model.

As a producer in 2022, it’s still wise to broaden the number of places you pitch to, as it can considerably increase your success rate. In fact, Blake & Wang P.A assist with getting pitches to more eyes and places than most producers can access themselves. We have major networks, TV studios, and streamers alike reading client’s scripts at the moment.

Key Things to Know About TV in 2022

There are some key things to understand about the TV and streaming space at the moment. Firstly, 2021 saw a flurry of mergers, acquisitions, and reformatting in major industry players. Some key aspects to remember are:

1. There’s been a rise in interest in non-English streaming content that’s set to boom throughout 2022 and likely beyond. It’s been primed and driven by the massive success- and global connection- with some key South Korean content over the last few years, including the massive and unanticipated interest in Squid Game and, on the film side Parasite. We’ve very recently seen Netflix amp up its non-English content spend in French, European, Asian, and even African 'homegrown’ content. This is set to become a new area to push for TV producers capable of delivering compelling content in this area. A non-English script is no longer a niche area of focus.

2. This year we will see the final closing on the Warner Media-Discovery Merger. This has a lot of implications for what sort of content will be being pitched and what will be most desirable. I’ll take a look at this below.

3. The pandemic-driven domestic subscription boom is over. Now we’re seeing streamers reposition themselves to find new ways to appeal to a saturated market. A key part of this is through lower-tied AVOD (ad-supported) tiers. This will bring the Upfronts back into key focus and make them much more relevant again, as that is where a lot of advertising deals are closed. Another reason I say we will see streamers moving into the Upfront space over the next few years, rather than a move away from them.

What’s Hot to Pitch in 2022?

The Warner Media-Discovery merger is going to be a big shaper for the reality/unscripted TV industry. Discovery has become known as something of a Netflix for reality TV already, and the upcoming merger and refocus on Discovery+ is only going to enhance this.

Of course, a lot of subjects fall under ‘unscripted’, and not all of them are going to pitch equally as well. For some, the market is saturated, for others, the market could still be developing. It’s not a given that unscripted is a better area to focus on than scripted, and many quality scripted pitches will be picked up this year. While demand for content is high because of streaming, oversupply is still a risk. Although looking away from staples and spinoffs is risky, this is a year where that risk may pay off.

In short, pay attention to these key factors and let them guide you, but a quality concept with a strong potential will be well received no matter what, so don’t chase the trend dragon to the extent you lose sight of the intrinsic value of your productions and projects.

Blake & Wang P.A is here to help you find the right home for your pitches, especially through the 2022 pitching season. We have a vast network of contacts and access to a range of industry ears that a producer will not be able to replicate through their own contacts. Sometimes, the difference between a successful or a failed pitch is getting the right eyes on it, not what the subject matter is. With streaming hungry for content, there’s room for a wide variety of projects.

As always, it’s a complex arena, and one in which experienced entertainment legal counsel is essential. We’re offering this piece as a general guideline, but it doesn’t replace personalized, specialized legal counsel. If you need help getting your pitch to the right people this pitching season, we are here to assist.

QUESTION FOR FILMTVLAW.COM:

Hey there. I read that television pitching season starts this week. I’ve got 9 projects ready to go. Can you help me pick which one is the best to start out with? Do I need to worry about pitching season anyway because my scripts are better for Netflix?

ANSWER BY BRANDON BLAKE, ENTERTAINMENT LAWYER:

Thanks for a great question about pitching season. For the Networks, the third week of May is the official start of pitching season, and that is because the Upfronts are over and now network execs are ready to start looking for projects to develop for next year. Due to the disruptions of last year, 2021 is the first year since 2019 with a full Upfront event. In addition to this article, I share more than a hundred in depth entertainment industry articles on my website at www.filmtvlaw.com/entertainment-lawyer-qa. Please also check out my bio at www.imdb.me/brandonblake.

The 2021 Television Pitching Season

So, does any of that matter in an era of year-round streaming and series that are picked up for multiple seasons on Netflix within the same year? Although I don’t think there is any one best moment to pitch a television series now days, anyone who dismisses broadcast networks and cable linear television is making a big mistake. Seventy-five percent of television series revenue still comes through broadcast and cable, and many streaming hits have started out as broadcast and cable series.

As many series as Netflix and Amazon produce, collectively a lot more series are developed and produced by the Networks, pay and free cable, so dismissing this major part of the television industry does not make sense to me. When television producers broaden the number of places to pitch a series, the success rate increases exponentially. One of the things we can help experienced television showrunners and executive producers with is to get a potential series to a lot more places than most producers can access through their own contacts. There is not a major network, streamer or television studio that is not currently reading one of our client’s scripts, and many have more than one.

What’s Hot in Scripted Television for 2021

While I must reserve my knowledge of network and streamer mandates and detailed knowledge about current television industry audiences and demographics for clients, I can provide two general areas of interest right now at streamers and Networks. According to conversations I have had with many network, studio and production company executives, this season is all about dramatic comedies and light, funny dramas.

I am aware of the fact that both of those are inherent contradictions according to usual television genres, and yet that is where the demand is right now. I break that down with details for clients and strategize how to take advantage of this new direction by networks and streamers without creating a mess of traditional formats and series genres.

What’s Hot in Reality Television for 2021

While reality television has been primarily a year-round business for quite some time, it still makes sense to pay attention to the Upfronts and the advertising cycle when pitching reality television.

The reality of reality television right now is that consolidation is causing some demand problems. Discovery is just getting huge and becoming the Netflix of reality television. That is great for our clients, because I have strong contacts with Discovery. However, it is also creating a situation where Discovery has ended up with way too much of some subject matter and genres, and not enough in other places. Added on top of that is the Warner Media deal and reality is going to be complicated for the next year or so.

Industry wide, reality television is facing the same kind of over supply that the feature film industry faced for a long time. That is causing extremely focused demand areas at all of the reality networks, streamers and production companies, where things like talent are commanding a premium, and certain reality niches are driving demand, while some old staples in the reality business are over supplied.

Streaming, AVOD and Beyond

Streaming is starting to look a lot more like network and broadcast as AVOD begins to take hold. AVOD means “advertising-based video on demand.” From what I have been told, major advertisers have been looking for places to spend their money, and a lot of top shows are at subscription services. It was only a matter of time before this major capital got it’s wish, and now it seems almost every streamer either has an ad supported tier or is testing ad supported content.

This would seem to undermine one of the principal reasons that streaming flourished originally, which was audiences fleeing from ad interruptions on broadcast and free cable. However, the promise of either free or reduced-price streaming seems to be appealing to viewers, and that is why this year AVOD is being built into the Upfronts of many of the major Networks that own or partner with a streaming platform.

All of this means that right now is an ideal time to start getting new series out to networks, television studios and major production companies. Please contact my firm if you would like help tailoring a series project to current network demands, or if you would like to broaden your production options and get a series to more potential networks and streamers.

As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Check out my video blog "How to Sell Your Script To a Studio" where I answer the most common question by screenwriters and film producers. As an entertainment lawyer that has represented over sixty produced film and television series I have learned a few things about studios and share insights with clients and friends of the firm.

This video is for informational purposes only and does not represent legal advice. Contact our office with specific legal questions or to schedule a consultation for a quote.

Question for FilmTVLaw.com:

I read about how the Section 168 k deduction is the new film finance tax deduction and that it replaced Section 181? Can an independent film qualify and where do I have to shoot it to get the big tax break?

Answer by Brandon Blake, Entertainment Lawyer:

I am getting more calls than ever before about investor financing feature films. This summer is set to be a goldrush for film producers as both Americans and Europeans rush back to the theaters. My new article answers all the preliminary questions about whether investor financing under IRS Section 168 k is right for a new film or television series. In addition to this article, I share more than a hundred in depth entertainment industry articles on my website at www.filmtvlaw.com/entertainment-lawyer-qa. Please also check out my bio at www.imdb.me/brandonblake.

Section 168(k) Film Deduction Overview

For anyone who has not heard about it, Section 168 k is the new film tax deduction under the Tax Cuts and Jobs Act that replaces Section 181. Most of the provisions are the same, providing a 100% tax deduction for feature film and television series in the first year of distribution. The tax code is more complex for Section 168(k) than it was for Section 181, so it is more important than ever to retain our entertainment law firm to prepare the offering and handle the paperwork for your investors. In order to determine if IRS Section 168 k is right for your film or television series, check out this detailed Frequently Asked Questions where I go step-by-step to help you determine if your film or series qualifies for Section 168 k.

Section 168 k Deduction Frequently Asked Questions:

What Does the Section 168 k Deduction Do for My Project?

IRS Section 168 k under the Tax Cuts and Jobs Act allows your investors to take a 100% tax deduction for the feature film or television series in the first year of distribution. In order for your investors to take the deduction you must qualify the film under Section 168(k). Our law firm will qualify your film or series as part of preparing a securities offering for it.

Does My Film or TV Series Qualify?

Our firm can qualify any US based feature film or television series for the Section 168 k deduction film and television incentive.

Can I Qualify A Film or Television Series That Was Already Shot?

No, our entertainment law firm cannot qualify a film or television series for the Section 168 k deduction that has already been shot. Only a new feature film or television series that has not yet been shot can be qualified for the Section 168(k) film deduction by our firm. Even if you used investor financing for your film in the past two years, we cannot qualify your project if you already shot your project.

Is There a Minimum or Maximum Budget Under IRS Section 168 k?

No, there is no minimum budget size, and there is no longer a maximum budget either under the Section 168 k deduction film and television incentive. This is a change from the old Section 181 where there was a cap of $25 million.

How Do My Investors Take the Section 168 k deduction?

Your investors can take the deduction if they have invested into a qualifying film, television or theater production, provided that the project is distributed by 2023, and that the producers have filed the appropriate tax statements with the IRS.

Can Your Law Firm Make the Tax Filings for My Project Under IRS Section 168 k?

Yes, our firm will make all of the appropriate tax elections for your feature film or television series under the Section 168(k) film deduction, provided that you hired our firm to set up the securities offering and that our firm represents the offering. We cannot file for the deduction unless our law firm set up the initial securities offering and qualified the film or television series for the deduction.

Do I Also Have To File My Project with the SEC?

Yes, any project that is raising money for an independently produced feature film or television series under the Section 168 k deduction film and television incentive must also file the investment with the Securities and Exchange Commission (SEC). Our law firm will file your project with the SEC as part of putting together a securities offering.

If I Shoot In Georgia, Louisiana or New Mexico, Can I Still Get the 168 k Deduction?

Yes! You can “double up” and take both the Section 168 k deduction film and television incentive, and also still qualify for any state tax incentives.

Do Short Films Qualify for the Section 168(k) film deduction?

Yes, however, you do need to find distribution for the short, which can sometimes be a challenge. But there is nothing in the rules of IRS Section 168 k that would disqualify a project because it does not meet a minimum length.

How Many Films Can I Shoot Under the Section 168 k deduction?

There is no maximum number of films or series you can make under the Section 168(k) film deduction, and our firm can set up a film fund that provides the IRS Section 168 k deduction on each of the films.

I have personally qualified hundreds of films for the Section 168(k) film deduction. Feel free to contact our firm about securities services for your next film or television series. Unfortunately for liability reasons I cannot provide any other details about Section 168 k until you have paid for our securities services and become a client, but I am happy to provide a quote and timeframe for qualifying your film.

As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Premiering my new video blog today "How To Get A Project On Television." I share strategies and tips used by top executive producers to get shows seen and picked up on major platforms like Netflix, Amazon, Hulu, HBO Max and Disney+. After representing television series for twenty-one years I’ve learned what networks and streamers are looking for from producers in terms of materials, level of development, and audience, and I share many of those tips in my new video blog.

Selling a project to Netflix involves hard work and a great series or film, but there is also a trick to pitching a project to Netflix. Lawyer Brandon Blake discusses tips and tricks to how to sell a TV series to Netflix, including the types of materials that Netflix wants to see for a new reality series, dramatic series or feature film, and how to best sell a TV show to Netflix. Attorney representation can be key, and when it comes to selling a project to Netflix, entertainment lawyer Brandon Blake shares everything he knows from 20 years in the film and television business.

Question for FilmTVLaw.com:

I’m hoping you can answer a question for me that I posted earlier about TV pitching season this year. Given COVID and everything, what about pitching season this year and when is a good time to get projects to networks?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question about television pitching season and the effects that COVID had on the TV schedule this year. We are busy representing scripted dramatic series and reality series to networks and streamers and are getting projects picked up right now. In addition to this article, I share more than a hundred in depth entertainment industry articles on my website at https://filmtvlaw.com/entertainment-lawyer-qa.

Pitching Season 2020

I can say from personal experience and on behalf of clients I am representing to networks and streamers, that this is definitely prime time for pitching season this year. There are some very practical reasons that I believe that pitching season is going to go later this year than usual, and I am going to make some very specific predictions about the type of series that will be picked up. All in all, it’s good news for independent and first-time producers and writers.

Virtual Upfronts

Earlier this year the annual network Upfronts went virtual, for obvious reasons. The effect was that less long-term deals were signed, with a lot of major advertisers making short term, quarterly ad buys rather than going all-in with upfront commitments.

What could all that possibly have to do with television producers and writers? Well, the production and development budgets of networks and many major production companies are coming from those advertisers. Scatter Unit Pricing, which is the cost of buying network ads on a rolling basis rather than “upfront”, is substantially higher, so the Networks are bringing in plenty of money. But that money is on a quarterly basis, with less long-term commitment than in years passed.

That equates into the Networks pursuing more short series, a larger number of lower budget series that can be produced quickly, and most likely fewer renewals for long running series. I have been noticing that all year long as fewer existing series are getting renewed, and some are being renewed, and then cancelled before production restarts.

The Numbers

So how much are Networks making for a prime-time 30 second ad? Earlier in the year the average scatter prime-time pricing for the major networks was $144,584 per 30 second ad, while the cost of Upfront ads was $83,171. That is quite a spread, and this is the reason why Networks have done fine as advertisers switched to short term ad buying. And all of that short term buying by advertisers is having some positive impact for our clients.

First Time Creators and Reality TV

Two trends I see continuing this year are the rise in demand for first-time creators with new series, and the continuing expansion of reality television. First-time television creators and executive producers are getting a bump because odds are, the series are going to be less expensive, and they will be happy with a six to twelve episode run. Additionally, the diversity programs and incentives that every network and platform has set up, many of them this year, are going to tend to favor new series creators.

And for reality television, the per episode cost is much lower and production takes less time, so the Networks can order series and get deliveries with shorter lead time. Since the launch of so many streaming platforms earlier this year was already pushing up demand for reality content, this is the perfect time to get reality television produced.

Streaming Platforms

To some extent, streaming platforms have already gone to a year-round, rolling pitch season. The reason is because they are not subject to the dictates of ad buyers, although Amazon Studios, Hulu, and Peacock all have certain content that is being paid for by advertising.

Additionally, companies like Disney, who have subscription streaming on Disney Plus but also own ad supported networks including ABC and Fox, are going to continue to be influenced by ad buying cycles, even if they have some subscription-only platforms.

For that reason, trends with Upfronts and ad buying tend to influence all of the development decisions at streamers, even if only to the extent that everyone has to compete against ad supported content, even on a purely subscription platform.

Our entertainment law firm does pitch dramatic television series and reality series directly to major networks and streaming platforms. Feel free to contact our firm about film or television packaging and representation services. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I’m starting up a talent management company but I’m concerned about the Talent Agencies Act. Is that just for “agents”, or do I need to worry about the labor commission now too?

Answer by Brandon Blake, Entertainment Lawyer:

A lot of things are changing quickly in the entertainment industry these days, and probably no single change that is more important to film and television producers than the shift away from traditional agencies to talent management. Overall I think it’s going to be a great thing for the industry, but there are going to be some hurdles to overcome, and the Labor Commission is going to have to embrace this new creativity and working model. In addition to this article, I share more than a hundred in depth entertainment industry articles on my website at https://filmtvlaw.com/entertainment-lawyer-qa.

How Did Agencies Get To This Place?

To be fair, the past two years have been unrelenting for the talent agencies. First the WGA action against agents destabilized the core of many larger agencies, which was packaging. Then, as if that was not bad enough, COVID came along to batter physical production. Most agencies primarily rely on actor commissions for operations, so this meant that both packaging fees and actor commissions had ended, wiping out all sources of income for the agencies. Along the way the California Labor Commission threw in AB5, to shut down lots of indie productions in California, and a perfect storm emerged.

Agencies Versus Managers

Talent management is not a one-to-one replacement for talent agency representation. The reason is because of the Talent Agencies Act, of which there are similar versions in California and New York and many other states.

The California Talent Agencies Act (Cal. Lab. Code, S 1700 et seq.) requires that talent agents in California pay a bond and register with the state before they can “solicit employment” for clients.

I draft talent management agreements, so I know that at the core of every talent management agreement is a provision which requires that the client agree to also maintain agency representation throughout the course of the management contract term.

The reason for that is because technically the manager is only “advising” on career decisions, but the talent agency is actually “soliciting employment” on behalf of the client.

The other reason is because typically managers are also doing other things for the client, like acting as producers and executive producers on projects, and this would create a conflict of interest under the Talent Agencies Act.

No Unsolicited Materials

The other issue, outside of the Talent Agencies Act, is how production companies, studios and networks will treat submissions from the new crop of talent managers.

There’s no doubt that the super star agents who have left CAA and WME will have no problem submitting projects to their pre-existing contacts at the studios and networks, but how will studios and networks treat the new crop of lesser known managers?

That is going to be entirely an issue for internal policy making at the studios and the networks. But the reason for the “no unsolicited materials” rule is supposed to be to allow for a somewhat uninterested third-party to make and document the submission.

But with most talent managers serving as producer and executive producer on the projects they represent, can they still be considered as unbiased and neutral as the established talent agencies were?

The Percentages

There is also the issue of the percentages that talent agents and managers take. I am the first one to point out to clients how much work talent managers do. This is not a “two phone call” situation, and that whole myth needs to be cleared away. It’s a ton of work to represent and package a film or television series.

However, the issue is that talent agencies are taking 10%, on top of the talent managers fee of 15%, so from the client’s perspective, that is 25% off the top. And when I say, “off the top”, that means that the agent and/or manager actually is paid first 100% of funds, and then the remainder is sent to the client.

Is it worth it? I would say 100%, but the question is, if the manager is doing all the work, why is the agency taking 10% of the deal? If the purpose is to simply satisfy the Talent Agencies Act requirements, then the manager could use an entertainment law firm like ours instead, save the commissions and instead pay a low monthly fee for exactly the same representation.

Solutions: Repping the Reps

The California Labor Commission needs to start realizing that the entertainment industry in California is a fragile, precious resource that needs to be nurtured and supported, the way every other nation, and practically every other State in the country treats their own entertainment business.

Unless something changes, the Labor Commissioners are going to wake up one morning in Sacramento and realize that they have literally wiped out the entertainment industry in California, and they have no one to blame but themselves.

In the meantime, the work around will have to be that managers are either represented by entertainment law firms, or that “name only” agencies will be on board for the purpose of papering over the requirements of the Talent Agencies Act. However, that certainly doesn’t seem to accord with the spirit of the deal that the Agencies made with the WGA regarding packaging.

Feel free to contact our firm about film or television packaging and representation services. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

Just read that UTA is going to get out of packaging. Is that a good thing for an indie producer? I don’t understand how this is going to effect me if I wasn’t repped in the first place.

Answer by Brandon Blake, Entertainment Lawyer:

Nothing more ground shaking going on in the entertainment industry these days than what has become the massively successful campaign by the WGA to get signatory agencies to stop the practice of packaging. It’s nothing but a good thing for WGA and non-WGA writers and producers and represents a whole new era in Hollywood. In addition to this article, I share more than a hundred in depth entertainment industry articles on my website at https://filmtvlaw.com/entertainment-lawyer-qa.

PACKAGING – TWO PHONE CALLS OR A LOT OF WORK?

At the heart of all of the controversy between WGA and the agencies is packaging, which is representing an entertainment property (generally a film or television script), and attaching cast and then bringing the project to production companies, studios, networks and financiers.

Up until the past two years, agencies dominated packaging. But the problem emerged when it turned out that the packaging at the agencies was in fact being paid for by the production companies and studios. The WGA believes this created a conflict of interest, because the agencies became an extension of the studios and large production companies, working to put together projects, rather than getting the best rates for represented writers.

What has not been addressed is the fact that packaging is a lot more than just “two phone calls.” While it does rely on an extensive database of contacts, to be successful it also requires developing the properties, knowing network and studio mandates, and basically guiding a project through development. That takes a lot of time and is something that production companies and studios should be paying for since it benefits them. That is what major agencies did in the past to package a project, and it wasn’t cheap, easy or done in two phone calls.

NEW FREEDOMS

If the WGA can get either CAA, WME or ICM to join into the packaging ban, then they will have officially won the fight on behalf of their writers. Agents will no longer be working on the behalf of production companies, studios and networks, but instead will be working on collecting the biggest fees they can for their writers. This means that WGA writer fees on new television series and feature films should go up, which is a serious victory for creators. For decades writer fees have stagnated compared to the increases in rates that A-list cast were collecting. That could be because agency packaging disproportionately hurt writers, which explains why SAG and DGA have not fought the same battle that WGA did against packaging.

For writer-producers who are not currently represented by a major agency this is a double win. First off, if agencies get back to representing writers and talent, rather than packaging and producing movies, they should have more time and more incentive to bring on new writers. That means that more writers should be able to find agency representation.

Second, writer-producers can begin to package their own projects, putting together the same thing that studios and networks got used to getting from the major agencies. A whole new era is starting of independently packaged and developed projects, all of which will be done with the blessing of agencies, because now when there is demand for their clients, they will actually be happy about it.

GOOD NEWS FOR PRODUCTION COMPANIES TOO

This is also great news for production companies, big and small. In the past, production companies would go to one agency and get the agency involved with packaging their project. The problem creatively, and economically, was that now the production company was locked into writers, directors and actors that were represented by just one agency.

Creatively production companies were shepherded into a walled garden, where every element of the project would need to be repped by the same agency. Then add on top of that the in-house production companies, and the production companies were basically urged to sign a financing or production deal with the same company providing the cast and the creative elements.

In a lot of ways, production companies were simply viewed as investors, the ones that actually brought cash into this whole closed ecosystem of packaging and development.

REPRESENTATION

With the end of agency packaging, representation for production companies and writer-producers is more important and valuable than ever. To bring a packaged project to a studio or network, the studios and networks require that a production company have known representation with which they have worked before for liability reasons.

I have personal contacts at nearly all of the major studios and networks, and can guarantee that top executives will review projects submitted through our firm. Very few firms have the scope of contacts or depth of relationships in all fields of entertainment, from feature film to network and cable dramatic and comedy series, reality series and docuseries, I have creative executives in all genres reading great new material.

Rather than simply investing into a WME packaged and developed project, production companies can now grab the reigns and invest in their own packaging and development, so that critical development dollars go to where it ought to be spent, in the development of their own project.

Feel free to contact our firm about film or television packaging. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

It seems like it’s a week for good news in the entertainment business! As always, BLAKE & WANG PA is here to guide you through what you need to know about these groundbreaking negotiations. There’s been serious concern in the industry about the expiring contract of the AMPTP with the Screen Actors Guild. If this had gone sour, we would have seen threats of an actor’s strike. Coming on top of the industry-wide ruckus that COVID-19 has left in its wake, this could well have been disastrous. Fortunately, it looks like this particular hurdle has been avoided even before it can become an issue, and the overall result of the newly renegotiated contract looks like a positive boost for the film industry right at a time where that news is very welcome indeed. Interesting as a strike during the unique conditions of the pandemic may have been, that’s something much better to celebrate!

What deal has been cut?

SAG-AFTRA’s national boards have fully approved the union’s 3-year film and TV contract. The vote was split pretty evenly through two-thirds majority, indicating the bulk of the parties involved support the measure, although the third who ruled against it may be worth watching as it goes forward to their members. Overall, feelings on both sides of the deal seem to be positive, and the projected changes to guild member’s packages certainly look attractive.

What effect will this new agreement have on members?

Sources within the union suggest that this new agreement with management representation AMPTP will add well over $318,000,000 to their member’s income over the next three years. That is, of course, nothing to be sneezed at, and is likely to be a fairly viable idea, even given the loss of most of 2020 for filming. They’re also projecting a 26% gain in streaming residuals, enhanced by a change to how foreign streaming residuals are calculated, that will be very welcome as we see the streaming industry booming right now. Lastly, they even project wage increases in the region of 2.5%-3% annually over the three years.

This could be slight optimism speaking. As one of the top entertainment law firms Los Angeles has, we have been well-placed to see the profound impact the COVID-19 shutdown has had (and continues to have) on the industry. While we’re seeing a return to business throughout the film and TV industry, there can be little doubt that the safety measures being imposed on set will overhaul the way film and TV crews do business.

While these precautions are undoubtedly necessary, and we applaud the stringent measures the industry is willing to put in place to protect their casts and crews as well as the unique ways sets are rising to the challenges of shooting in the COVID era, it’s all extra administration and untested territory. With potentially slower filming times due to these challenges, coupled with an overall downturn in income and earning potential throughout all industries in 2020, will we really see wages rise in the sector? If so, the SAG members who benefit will be one of very few industries globally to see any kind of wage uptick. Putting that aside, however, the projections of growth are promising for the industry as a whole, and we hope to see them come to pass.

They are also looking to increase the union’s benefits plant by just under $100,000,000 over that three year period, with over half of that being additional funding for the Health Plan. That’s incredibly admirable, and will no doubt be a tremendous comfort to members going forward.

Will the deal be welcomed?

If there’s one thing entertainment law firms San Francisco-wide are no strangers to, it’s that the guilds and unions don’t always speak as clearly for the individual members as they like to think. With this in mind, will this lofty announcement be well met on the ground?

SAG-AFTRA President Gabrielle Carteris seems to believe so, reinforcing that this deal represents the “needs and interests of our members as they shared them with us during our national Wages and Working Condition meetings held across the country.” It certainly falls in line with future-focused projections for the industry, and can be argued to be a strong foundation to further evolve over the next three years. If there’s one legacy that COVID has left the film industry, it’s that there are going to be significant changes in both the industry as well as the way the film business is done in general, so starting from a stable and mutually-agreed foundation with some guarantees and reassurances is certainly not a bad way to go into an exciting, but slightly uncertain, future for the industry.

David White, the national executive director (and de facto negotiator) for the union added the following:

“I am grateful to our negotiating committee and staff for their tireless and exceptional work on these once-in-a-generation negotiations. In voting to recommend approval of this forward-thinking agreement to our members, the board is helping to usher in a new era for how our members work and earn a living. We achieved unprecedented increases in residuals in the fastest-growing category, we secured ground-breaking protections for members in the areas of nudity, simulated sex, and sexual harassment, and we strengthened our benefit plans.”

While the agreement must still be ratified by members of the union, it’s certainly a welcome positive view of the negotiations and they seem likely to go over well.

What added protections does the agreement bring actors?

We touched on the new difficulties involved in shooting scenes safely (from the infectious risk perspective) in the COVID era above, but this is relatively small stuff next to some other concerns simulated sex scenes and/or nude scenes have raised for union actors in the past. The new agreement looks to put in place improvements in protection for performers undertaking this work that’s nothing short of historic in scope.

While we won’t go into full details here, key points covered include better safeguards for interviews and auditions, a 48-hour ‘cool down’ review period on the signing of riders as well as improved access to discussing these riders, and more. There’s also new stringent rules for production, including clarity on the definitions of ‘closed set’ and strict prohibitions on the use of personal media devices to record. The use of digital doubles and digitization of these scenes in general has also been clarified and ratified.

This is not the only improvement. Positive changes to overtime calculator for stunt performers on weekly/episodic series have been hammered out. Likewise, covered background positions for the West Coast on episodic productions are due to come in in Year Two, creating over two thousand background jobs a year, better pay, and scheduled breaks.

Broadcast syndication, despite being a declining business, also had tweaked provisions, swapping out a dated fixed residual with a revenue-based residual. Protections eliminating advance payment of residuals for future syndication have also been secured.

A historic- and smooth- negotiation concludes

Given that the entirety of the 7 week negotiation period was undertaken by videoconference, the hammering out of the fine detail is admirable. While the board vote didn’t trigger consideration of a minority report, we’ve been told one will be included when the members vote.

While we’re still waiting on the results of this final vote, the overall mood accompanying this announcement is buoyant and discussions appear to have been sensible and productive, so we do not anticipate further hurdles ahead.

BLAKE & WANG P.A always has it’s fingers on the pulse of entertainment news nationwide, so don’t hesitate to reach out to us today if you’re looking for efficient, informed counsel and representation.

As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

The strike is off- or so it seems! At a time where we all will welcome some good news, the WGA and producers of the AMPTP have seen fit to give us a big boost. The news is that they have reached an agreement together. This avoids a writers’ strike that no one in the industry needs at this time, smooths over what’s become some very troubled waters, and will leave people on both sides of the guilds better able to reframe, refocus and move ahead with the exciting new challenges facing the film industry in America right now. BLAKE & WANG P.A calls that a victory to be celebrated. As always, we’re here with all the details you need to know to keep yourself well informed, so let’s look at the matter in closer detail.

The WGA on the warpath

If you haven’t been completely on top of the news of late, the disagreement between the AMPTP and the WGA has arisen as a result of the now infamous and sweeping changes to representation demanded by the WGA of its members. The cause of most of the ruckus was a disagreement in how packaging has affected the industry over time, and the influence it can have on getting work as a writer (or even actor, truth be told).

Why did this situation ever come to be, however? In short, the original agreements in place between the entities arose at a time when no one could have foreseen the profound impact that packaging would have on the industry. While the concept has been in play for longer then many may think, it has only risen to prominence in recent years as we’ve seen a complete evolution (and revolution) in how TV and Film is produced, distributed, and even consumed by viewers. This unprecedented shift in how the industry works has, undeniably, led to shifts in the influence of packaging on the chances of securing work for individuals in the industry. It’s unsurprising that the WGA would want to look out for member’s interests and even force a revision of how these matters are handled. The more than a year-long stalemate that resulted has been a fascinating test case in bargaining and faith in your union for writers, as well as how little impacted major production houses were by the demands. While the ‘Big Four’ agencies refused to capitulate, and the shifts in representation made it possible for actors and writers alike to seek a more diverse representation from their managers or even to use an entertainment attorney, Los Angeles is probably better served at this time by seeing some resolution in the matter so we can focus on more important concerns.

A long, hard negotiation process

No one is claiming that the road to get here was easy. Not only was there hurt feelings as well as valid arguments to work through on both sides, but the Coronavirus also served to throw a debilitating (if fascinating) curveball at the TV and film industry as a whole. In fact, much of the negotiations that have resulted in this positive outcome were done over remote connections and teleconferences, a first in itself for the industry.

The deal on the table may be tentative right now, but it is certainly welcome. While the issue may not have seemed as destabilizing when it first came to a head, the knock-on effects of the COVID pandemic have caused a great deal of lasting damage to the industry as a whole. Not only has how we will do business in the future needed a complete overhaul, as well as negatively affecting balance sheets nationwide, it’s also led to a feeling of labor instability and uncertainty among those working in the industry. This news from the WGA and AMPTP offers a very welcome sense of stability returning and business-as-usual that is needed right now, and couldn’t really come at a better time.

It is the result, not only of hard work over the whole period, but also a marathon bargaining session that lasted well into the early hours of the morning. Despite this, the whole process has been described as ‘no-drama’ over the last several weeks. It’s now up to the guild’s members to ratify the agreement. Contract cycles of late have been putting items before members for ratification fairly swiftly, so we should see the results soon. As someone close to the talks has suggested, this particular ratification process will, in itself, be groundbreaking giving the prohibitions and needs created by the COVID pandemic. It will certainly be intriguing to see how it’s handled.

No details, but much hope

We haven’t been privy to too many of the details of the deal, but this is a fairly standard operating procedure for these things. In fact, the silence immediately after the deal mirrors that we saw after the DGA and producers reached an agreement in March.

However, we’ve been told that the deal they have hammered out included “significant movement” and “flexibility” surrounding the exclusive options that see writers tied to series with little control over the length of the run. With the rise of streaming platforms and the loss of the ‘fixed series length’ format, this has created much uncertainty for writers. As this is one of the key issues the guild has been struggling to address in the past few years, that’s certainly promising.

As of this week, we’ve had no official comment from either the WGA or the AMPTP, but we don’t find that a matter for concern going forward. Doubtless, the exact details of this stalemate-breaking deal will be brought before us in time, and it will be fascinating to see precisely what they are. What we do know for certain is, however, that if it’s accepted by the majority of members we will have avoided an untimely strike by the writers guild. Disastrous enough in ‘normal’ times, this could have potentially derailed the tentative recoveries we’re seeing in the industry. It would also- let’s be honest- have been an unneeded distraction from the process of creating new protocols and ways to get the job done to get writers, cast, and crew working. We’re very glad that such a positive outcome for the WGA, AMPTP, and the industry in general is on the table, and it’s excellent to see cooler heads prevail.

As one of the best entertainment lawyers in Los Angeles, BLAKE & WANG P.A have had plenty of experience in helping writers, actors and producers get their work seen by the right people within the industry. Whether you need help finding the right fit for your spec script, look book, or portfolio, or want to ensure that the contracts you receive are fair and just, we have the experience, contacts, and expertise you need. Why not reach out to us today, and we can discuss how to set your career on the right path to success.

Question for FilmTVLaw.com:

Thanks for the amazing articles Brandon! Hey, I want to get out there with my series but I’m nervous about the big production halt. Is it a good time to try to set up a series?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for the positive words! Our firm has never slowed down with development and pitching work, so I’ve got some great news about development right now for television and also feature projects. When you have a moment, take a look at the rest of my entertainment law articles available all in one place at https://filmtvlaw.com/entertainment-lawyer-qa.

DEVELOPMENT

So, unlike some of the big agencies like WME and CAA, our firm has not slowed down or stopped shopping projects to networks, production companies, or agencies. The results for the projects we are currently representing have been great. In fact, I have been getting stronger responses on many projects over the past three weeks than average for this time of year. There are a couple of different reasons for that which I am happy to share.

A-LIST CAST

I will start with a word about cast first. Right now, every major television series has halted production, and the feature film world is just the same. Of course, nobody wants to put cast or crew in harms way, and beyond that, there are some legal issues about whether or not general liability insurance and workers’ comp insurance will cover the producers if someone catches COVID-19 on set. Chances are that the insurance companies will not cover the costs under the pandemic or “Acts of God” provisions in standard insurance policies.

To add further production confusion, it is also possible that cast contracts with a “force majeure” clause in them can now be activated, which often allow either party to breach the contract should a particular event, like a pandemic, occur during production.

While that all seems very troubling, the upside is that there are now a lot of great cast that are sitting at home and open to reading the next great series pilot or feature film. Moreover, because a number of major agencies have given up packaging right now, there is also not very much competition, so there really has never been a better opportunity to get amazing cast to read and fall in love with a new project.

NETWORKS AND PLATFORMS

As I mentioned earlier, although the front desk of many Networks might have a general recording playing, all development executives are working from their cell phones and emails, and are busy stocking up on new scripts and new projects, in anticipation of the inevitable end to this situation.

In fact, management at some networks is encouraging both development executives and idled production executives to put all their efforts into development, even asking execs to focus on passion projects and new materials. Again, this is an awesome opportunity for new producers and producers looking to get into scripted or looking to move up to bigger networks.

PRODUCTION COMPANIES AND STUDIOS

It’s the same story here, with the exception that executives on the distribution or production side might begin to get paired down in the next few weeks. Disney already announced some aggressive staff reductions, although from my contacts it appears to be limited to distribution executives right now (those that deal with theatrical releases).

So, it’s a great time to bring new materials in development to production companies and studios. Just be ready to get a tentative greenlight, because nothing can go into physical production until the Stay At Home orders are lifted. As long as producers are realistic on this point, there are a lot of opportunities for feature projects.

Although no one can say how long the production holds might last, the fact is that a lot of producers are using this time to line up their next project. In an industry with such a huge amount of competition for top cast and network and studio attention, serious producers are using this as an opportunity to move to the front of the development queue.

Our firm can get your project to major networks, platforms, film studios and production companies. Feel free to contact our firm about film or television development representation. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I’m hoping you can help me to decide if I should produce my new project as a movie or a TV show. I think it could go either way, and a lot of my friends encouraged me to try to produce it as both. What do you think and can you help me get it produced?

Answer by Brandon Blake, Entertainment Lawyer:

This is certainly the big question these days and there are a lot of different ways to think about it. When I represent television series and feature films during development, I gain a lot of insights by talking with network and studio executives. I’m happy to share some of those insights with independent producers because I think it will make a big difference to the decision of how to develop a project. Please also check out the library of entertainment industry articles I have published over the years at https://filmtvlaw.com/entertainment-lawyer-qa.

FORMAT

First off, just to cover the basics, it is probably a good idea to clarify what it means to choose to develop a project as a feature film or as a television series. A feature film is developed as a single production, over 80 minutes in length. Conversely, a project developed as a television series should be conceived of as not a single program, but instead as a series of programs, typically in the 30 minute or 60 minute format. Episodes of 10 or 15 minutes are not typical for network or cable series, except sometimes for animation. Web series can be much shorter episodes but producing a project as a web series means you will not find broader network or platform distribution for the project. Likewise, a series should be considered in the context of at least 6 episodes, because anything less is not typical television development.

If a producer’s ambition is to first produce a feature film, then move into a television series based on the feature, then that is typical feature film distribution and it is not necessary to develop the series simultaneous with the feature.

One idea that pops up quite often is that a feature script of 80 or 90 pages can also be pitched as a television pilot. However, serious producers acknowledge that there is a big difference between an 80 page pilot and an 80 page feature film. It makes a lot of sense to solidly choose a direction early on.

MARKET DIRECTION

As I mentioned, a lot of articles about film and television development dwell on the market direction, so as to determine where there will be the most potential finance and audience available for your completed project. I do not agree that this is necessarily the major concern for most independent producers, but it is a good idea to go into your project development with your eyes open to the realities of the market.

The reality is that today, the market for television content is substantially greater than for feature film projects. That is being driven by a couple of factors. First, the platforms including Netflix, Amazon, Hulu, Peacock, HBO Max, and Disney+ all want to acquire a lot of content to fill out their services, and the easiest way to do that is through series rather than a lot of one-off feature films. Second, many of the platforms believe that series create more follow through with users, who will watch more content when it is produced in a series format, while they are more picky about choosing new features. Finally, financing is more difficult for features, because most feature films require private equity investors. More about that later in the article.

But despite all of that, many more feature films are produced than series, which really is not a benefit to the independent producer, because despite the smaller market and lower financing available, there is also more competition in the market with other features.

That all would tend to support pursuing television development for a project, but again, I don’t think most producers should strictly decide on how to develop a project based on market factors.

CREATIVE DEVELOPMENT

Just as important as market factors, independent producers should consider creative issues when deciding on whether to produce a project as a feature film or television series. This breaks down into a couple of different considerations.

Format: First, can a project really fill out at least 6 to 12 episodes, meaning at least 6 hours of content? Not every feature can be stretched out into multiple episodes successfully. I also think it is a big error to imagine that every television series is just a very long movie. That is not the case. There are fundamental differences between the structure of a series and the structure of a feature film.

Budget: Second, do you have access to financing to 20% to 50% of the feature budget, or can you raise it in short order through private investors or self-financing? If the answer is yes, then you might be in the position to have the cameras rolling in the next 3 to 6 months, and that is a very attractive proposition to many independent producers. A television series is going to take longer to develop, longer to green-light, and longer to shoot.

A-List Cast: Third, how interested are you in name cast? The fact is, to rise above the noise of the independent film market, producers need to attach A-list (or best available) cast to their feature projects. That means working with a law firm like ours to make offers to lead cast members. It also means catering to cast in terms of the types of roles that are written into the script. There are amazing, interesting characters that no actor wants to play. So “castability” has to be a consideration when going the direction of feature film development.

Story: Forth, how important is story to you? Careful on this one. Like most people, for years I felt that feature film tended to have better writing and sharper, more contained stories. However, what I have discovered over the past few years is that network creative and development executives really care about story and character. In fact, time and time again, when I am representing a series to networks, the first thing a development VP will ask me about is the story or the characters. If you think about it, that really is how it should be.

Conversely, there are quite a few conversations I have with film companies where at some point in the conversation the executive will tell me that “we don’t care about scripts.” A lot of film financiers will ask for a copy of the financial plan before the script! Instead, cast attachments, equity financing sources, and distribution guarantees often take precedent over the story and characters.

There are a lot of good reasons for that happening in the feature film world, mostly revolving around the absence of secure financing for feature film projects. However, I can’t help but feel like the entertainment industry is gradually moving to a world where producers and writers that care about quality are going to increasingly gravitate toward television development.

Our firm can get your project to major networks, platforms, and film studios and production companies. Feel free to contact our firm about film or television development representation. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I’m raising money for a movie and one of the executive producers said that if we are raising money under Regulation D that we don’t need to file anything anymore because it is under the Reg. D exemption. I didn’t think that sounded right but he sent me this link: sec.gov /fast-answers/answers-regdhtm.html. Is this too good to be true?

Answer by Brandon Blake, Entertainment Lawyer:

I am happy you asked this question because I have been getting hundreds of questions about it and I hope this article will answer a lot of film and television producers’ questions. If you have not yet, please take a look at my library of entertainment industry articles at https://filmtvlaw.com/entertainment-lawyer-qa where I answer questions twice a month for clients and friends of the firm.

REGISTRATION OF SECURITIES

This all started with how Google links to part of a question and answer on the SEC’s own website. When I saw it online, I confess I was confused at first as well, even though I have practiced securities law for 19 years.

Here is the excerpt as it appears on Google:

What is a Regulation D exemption?

Regulation D Offerings. ... Regulation D under the Securities Act provides a number of exemptions from the registration requirements, allowing some companies to offer and sell their securities without having to register the offering with the SEC. Dec 2, 2009

sec.gov › fast-answers › answers-regdhtm

At first glance it seems conclusive. “Some companies” can offer and sell securities without a registration, and it is all based on Regulation D. One thing to notice is the “…” in the middle of the Google excerpt. That indicates that Google has edited and excerpted this from another source, in this case, from the SEC website.

I’m not surprised that a lot of film and television producers have been confused by this statement. However, the key to understanding it involves knowing a little more about securities laws.

For a securities lawyer like me, the word “registration” does not mean what it usually means in casual conversation. In SEC-lingo “Registration” means the same thing as “IPO.” The SEC usually deals with really big companies that are raising billions of dollars. Companies that want to “go public” or conduct an “IPO” are required to “Register” their securities with the SEC.

When Facebook and Google sell securities, the SEC works with them directly, something like an IRS audit, making sure that the offering is being conducted according to all of the rules and regulations in place in the United States to govern an IPO.

This process generally costs several million dollars. Just to repeat that, “Registration” with the SEC will cost more than $1,000,000, because it is so much legal work to comply with all of the requirements, including filing the IPO in all 50 states.

For companies like Facebook and Google, a few million dollars in legal fees is like a rounding error and represents an insignificant percentage of the funds being raised. But for a film or television producer who wants to raise five million dollars, paying 20% of those funds for Registration doesn’t make any sense.

FILING FOR EXEMPTION

So, the SEC enacted Regulation D in 1982 to create a simplified way of filing an offering with the SEC of smaller amounts of money. It is true that an offering filed pursuant to Regulation D is “exempt” from Registration, meaning that you don’t have to pay millions of dollars on an IPO that will be filed in all 50 states.

However, that does not mean that there is nothing to do to file a company for exemption under Regulation D. In fact, the very link provided by Google leads to the following discussion on the SEC.gov website:

Companies that comply with the requirements of Regulation D do not have to register their offering of securities with the SEC, but they must file what’s known as a "Form D" electronically with the SEC after they first sell their securities.

And the SEC website continues:

Even if a company takes advantage of an exemption from registration, a company should take care to provide sufficient information to investors to avoid violating the antifraud provisions of the securities laws. This means that any information a company provides to investors must be free from false or misleading statements.

You should always check with your state securities regulator to see if they have more information about the company and the people behind it. Be sure to ask whether your state regulator has received notice of the offering.

In other words, there is still a lot of work to do when you are filing an “Exempt” offering. As the SEC states above, that work is broken down generally into 1) Filing the SEC Reg D. electronically, 2) Providing investors with required disclosures and disclaimers to avoid securities fraud charges, and 3) Complying with state law requirements to file your offering.

The work required to comply with SEC Regulation D makes up what is called an “Exempt Offering”. Preparing this material includes a PPM and other investor disclosures and disclaimers. While it is a lot less work that Registering your offering, it still is a complicated process.

KEEPING INVESTORS HAPPY

All this work is basically done to keep investors happy. Investors want to know what producers are going to do with the money, what is expected of them, what is expected of the producer, and what they can do if the film or television project ends up not making money.

If done correctly, complying with securities laws answers a lot of investor questions and provides a framework for how to compensate them if there are profits, and how to let them take tax deductions if there are losses.

Another benefit of filing for exemption is that it will allow your investors to take advantage of the Tax Cuts and Jobs Act tax deductions that are available to support film and television productions. This is a great benefit that you can provide to your investors by properly setting up a securities offering.

And the cost of not complying is first, securities fraud on both the federal and state level, and second, the investors will have the right of rescission, meaning that the investors will have the right to get back their money, even years after the movie was produced. When nothing at all is done to inform investors about the terms of the investment, ultimately the FBI can get involved, and their have been recent cases of the FBI arresting producers involved with what many filmmakers feel is “normal” business practice, meaning doing nothing more than filing an LLC when raising investor funds.

Please feel free to contact our firm about setting up a securities offering for your film or television project. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

Thanks for all the super informative articles over the years! Hey, I’m always hearing terms like “pilot season” and “pitching season.” Is there a strict rule about this or is it more of a year-round thing now?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for your important question about television pilot season and pitching season. If you have not yet, please take a look at my library of entertainment industry articles at https://filmtvlaw.com/entertainment-lawyer-qa where I answer questions twice a month for clients and friends of the firm.

So, the short answer is yes, “pilot season” and “pitching season” are still important times of the year, and especially for scripted network television. While I would say that in general reality television is probably a year round pitching season, and Netflix and Amazon (and probably soon Peacock, HBO Max, and Disney+) are also open to beginning new programs year round, major networks and to a lesser extent cable networks still do have a schedule for scripted programs, and to give yourself the best possible odds of success, you should be aware of it.

And to answer the question up front, yes, our law firm does represent series concepts and pilots to major networks, cable networks, and the platforms including Netflix, Amazon and Hulu.

Pitching Season:

Unlike Pilot Season, pitching season does not have a firm start date, because even the major networks will begin hearing series pitches early in the year. However, late May to early June is when pitching season really gets underway. Why? Because Upfronts are help the third-week of May every year. More about that below.

Traditionally series concepts and scripts are pitched from June until the start of the Holidays in December. Over the Holidays network executives will decide which series concepts will get a pilot order.

But what if you have already shot a sizzle reel or pilot? The sizzle reel will be considered part of the series concept, so that does not change the order of things. However, if you have shot a pilot independently, then read more below.

Pilot Season:

Pilot Season starts in January, when major network executives begin ordering pilots for series. Pilot orders are when a network decides that a series pitch is good enough to merit the production of a pilot to determine whether or not the series concept will translate into a popular series.

This leads to a period of roughly February through April when pilots are cast and produced. This is a busy time for actors and production crews as a substantial number of the network pilots will be shot during this period.

But what if you already have a pilot? Like I said, a lot is changing the world of television development and production, and one of those changes is outside funded and produced television series pilots. There once was a time when very few would risk the costs associated with independently produced pilots, but if a production company does make that risk, and if the pilot is good, the producer is leap frogging over much of the pitching process and presenting Networks with the opportunity to view a pilot without going to the expense of developing and producing the pilot in house.

Upfronts:

In April and May major networks will then make selections regarding series orders. Only a handful of the pilots at each network will get series orders. What’s the rush in late April and early May? The annual Upfronts are held in New York in the third week of May. This is where sponsors get to see the new series orders and make bids on commercial airtime “up front.” It is these sponsor orders that pay for all of the series and make up for all the losses on the pilots that don’t get selected.

But what about Netflix, Amazon and Hulu (soon to be joined by Peacock, HBO Max, Disney+)? To the extent that major networks like NBC with Peacock.tv, Warner Bros. with HBO Max and ABC/ Disney with Disney+ begin to adopt the same subscription model as Netflix and Amazon, you will begin to see a move away from the rigid Pitching Season and Pilot Season at the major networks. Why? Because none of those (for now) will be funded by sponsors, so rushing to get things ready for Upfronts will be a thing of the past. That is at least until the subscription model falls apart and we start seeing ads on Netflix, which is coming.

Getting a Project into Pitching Season and Pilot Season

In order to get a series project to be considered for pitching season and pilot season it must be represented by either a major agency, an entertainment law firm with relationships to the networks, or be developed by a major production company with an in-house deal with a Network or Studio.

I have talked with development and creative executives at multiple networks and they have all repeated the same thing. Although attaching a major production company is no longer required for many areas of television development, representation continues to be a pre-requisite to their review of a project.

Please feel free to contact our firm about shopping television series concepts and pilots this year. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

Assembly Bill AB 5 regarding contractor vs employee classification is geared towards the gig economy especially Uber and Lyft, but it will have effect on independent musicians. Would it have any impact on independent films and television series and how? It would be great to write on this in your next article.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question about the independent contractor law California AB 5, which has now passed and become the new California Labor Code Section 2750.3, which eliminates much of the independent contractor status in California. If you have not yet, please take a look at my library of entertainment industry articles at https://filmtvlaw.com/entertainment-lawyer-qa.

Unless there are some entertainment industry amendments next year, as of January 1, 2020, California film and television producers will lose the option to hire most production crew as independent contractors. Having now reviewed the new California Labor Code Section 2750.3, I do not see many exemptions available for the film and television industry, and in fact, the film and television industry has been specifically targeted by the new law, removing exemptions otherwise available to the publishing and print advertising industries.

Background of AB 5

The legislation originally known as AB 5 was intended to deal with some abusive labor practices primarily in the California transportation industry, specifically in harbor trucking and for ride sharing apps like Uber and Lyft.

But with arguably some great intentions, one of the most sweeping labor laws in California history has been passed, one that is not limited to the app or gig economy, and one that by its very language specifically targets the film and television industry.

Ironically, both the harbor trucking companies and Uber and Lyft have vowed to continue hiring drivers as independent contractors under some apparent loopholes that will leave the original targets of the law to skate through this without doing much more than increasing costs for their independent contractors.

The New Test for Independent Contractor Status

Here is the new language of the Labor Code Section 2750.3:

2750.3. (a) (1) For purposes of the provisions of this code and the Unemployment Insurance Code, and for the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(B) The person performs work that is outside the usual course of the hiring entity’s business.

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

I think it is safe to say that part 1(A) above is written so broadly that by the nature of the language it would be practically impossible for any producer to claim that a member of a production crew was “free from the control and direction of the hiring entity.”

However, part 1(B) is equally difficult for a film or television producer, given that the crew member would most certainly be performing services within the scope of the business of the production company.

That means that the California entertainment industry could only look to the exemptions for possible ways to continue to hire cast and crew as independent contractors.

Exceptions to AB 5 and Labor Code Section 2750.3

One of the primary exemptions from the new AB 5 comes in defining certain occupations as “professions” which are exempt from the protections of the new Labor Provisions. However, anyone looking for a film and television specific exemption to AB 5 is going to get an unpleasant surprise in Section (a)(2)(B)(ix), where film and television crew are specifically not included in an exemption for photographers:

(ix) Services provided by a still photographer or photojournalist who do not license content submissions to the putative employer more than 35 times per year. This clause is not applicable to an individual who works on motion pictures, which includes, but is not limited to, projects produced for theatrical, television, internet streaming for any device, commercial productions, broadcast news, music videos, and live shows, whether distributed live or recorded for later broadcast, regardless of the distribution platform.

What does that mean? It means that one of the only possible exemptions for film and television professionals was specifically removed by the legislative action, to make clear that film and television crew must now be considered employees and not independent contractors.

No Effect on The Entertainment Industry

As part of the legislative history, the legislature stated that they relied on film and television industry executives, as well as entertainment attorneys, who testified that there would be “no effect on the entertainment industry” by the passage of AB 5.

I am very surprised that was the opinion of the entertainment industry members that they asked about AB 5. However, I can only guess that the reason might be because many studio and network projects are produced in New Mexico, Georgia, Louisiana and Canada, and hence will not be affected by the new California Labor Code provision, and if only larger productions were considered, it is true that most of the crew is already on payroll. Unfortunately, it seems the independent film and television community has been overlooked.

Contract Solutions and Loan-Outs

There may be certain other provisions of the new Labor Code Section 2750.3 that will provide an independent contractor option for certain members of the crew, specifically writers and producers.

Moreover, some additional members of the crew might also be extended independent contractor status, but not without the imposition of new costs on these crew members.

For the above-the-line cast and crew, this would seem to strike at the heart of the loan-out company, taking away one of the last ways that business costs and expenses can be deducted, given that the Tax Cuts and Jobs Act took away business deductions for employees.

It’s imperative that anyone planning a production in 2020 hire an entertainment law firm like ours to provide pre-production and production legal for the project. Using any crew or employment contract drafted before January 2020 for a California production in 2020 and beyond will potentially subject producers to substantial tax penalties and law suits by both cities and the State of California, because AB 5 creates separate causes of action for California cities where the work is performed. That means if you hire an independent contractor in certain cities, the city itself can file a lawsuit against you personally. All it takes to get the ball rolling is for one contractor to sign up for unemployment benefits after the shoot.

Please feel free to contact our firm about film and television production legal for your next film or television project. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I’m getting ready to shop around my TV pilot script and a couple writers I know told me that I should get a good NDA drafted to protect my rights. Is that the best way to protect a television series?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a good question about protecting television series rights. As an entertainment attorney for the last nineteen years I view my responsibility as split evenly between protecting the rights of my clients work and equally importantly, getting projects out to networks, production companies and agencies that can help bring the projects to life. If you have not yet, please take a look at my library of entertainment industry articles at https://filmtvlaw.com/entertainment-lawyer-qa.

So to answer this question, I will start with the things every writer could and should do themselves to protect television series rights. Then I will touch on some things I do not recommend, and finally, I will mention why submitting your series project though our entertainment law firm is the number one way to protect your IP rights from plagiarism or infringement.

Do-It-Yourself

Some things really do get easier over the years, and nothing has been so streamlined as filing copyrights with the US Copyright Office. The Copyright Office makes available all of the necessary filings online, and there is no reason not to file a copyright for your television series before you get out there and start shopping it. It’s never too late to do it either. If you have not gotten around to it, here is the link:

eco.copyright.gov/eService

So, you might ask, is it really that easy? Yes, it is relatively easy. There are a lot of prompts and information that you can read along the way if you get stuck.

There are a couple of cautions: One is that the Copyright Office in the past year or two has gotten a lot more particular about “Works Made for Hire.” That is no longer the default choice for most producers and the Copyright Office has hired some examiners that are rejecting some filings. Still nothing like the rigor applied to Trademark Applications, but there is a little bit of oversight now at the Copyright Office.

WGA Registration

For nineteen years I have pondered the question of why the default way of protecting a film or television script for most writers is WGA Registration. Now if you are a WGA Member, then it is required. But for most non-WGA writers there is very limited benefit from a WGA Registration.

I actually discourage WGA Registration because of the fact that it gives writers the false sense of security that the project has been protected by making this filing. WGA Registration does not provide any statutory protection of the script, and it also expires in just five short years. Most writers and producers who have filed a script with the WGA will not renew the registration, and hence their scripts are entirely unregistered and unprotected, and they probably do not even know it.

Non-Disclosure Agreements

Now we are getting to a delicate subject because there are writers and producers who feel that it is absolutely essential to get a non-disclosure agreement signed by anyone who reads the script.

On one hand I respect the fact that it is a powerful way to protect the IP of a project, because a signed contract will specify exactly what the expectations are for protecting not just the copyrightable expression, but also the idea and title, which are not protected under copyright law.

However, many networks, production companies and studios will not sign a non-disclosure agreement before reading an outside script. In fact, many of them will request the writer or producer do the exact opposite and sign a submission release, which specifies that the writer or producer will have limited rights to sue in case of infringement or plagiarism of the idea.

I would suggest that this is one of the reasons to submit through a known entertainment law firm like ours, rather than resort to doing-it-yourself on this issue. For each network or production company that will sign, five more will not, and in television pitching, you don’t want to damage your odds that way.

Trademarks

Trademarks are another way to protect some of the IP rights to a television series. If you feel that the title of your series is especially important, or if you have certain designs, logos, or characters that might be unique and protectable, then trademark might be an option.

Typically, animated projects are most likely to need trademark protection, since a big part of an animated series are the character designs and the artwork for the series. On the other hand, reality television series are another good candidate for trademark protection, because less of the pitch materials are copyright protectable.

Submission Through an Entertainment Law Firm

Finally, I would like to discuss the number one way to protect the IP rights to a television series, and that is to have the series submitted through our entertainment law firm. None of our clients’ series or feature projects have ever been infringed or plagiarized.

If you think about it, having a third-party submit the series and keep detailed notes about what was submitted, and to whom, is the ideal solution, and if that third-party is a law firm which can enforce a client’s rights in court, it is going to make any infringement very unlikely.

Moreover, unlike requiring readers to sign a non-disclosure first, major networks, production companies and studios actually like it when a project is submitted through a respected entertainment law firm. That’s because networks, production companies and studios are paranoid that writers will file false infringement claims, and they feel more confident when a third-party has documented the submission. So, submitting through an entertainment law firm really is a win-win for everyone involved.

Please feel free to contact our firm about television representation, copyright and trademark services. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for informational purposes only and does not represent legal, accounting or tax advice. Do not act on this article without hiring legal representation.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

I’m an experienced showrunner with two series under my belt. I’m shopping around a third but getting shut out of all but current connects and friends. I never went the agent route, but now considering agent vs. manager vs. law firm. Appreciate any insights.

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a good question about television representation and shopping television series. I have been representing television writers and producers for nineteen years and I have never seen a better time to be out there with a new television series project.

I would like to focus first on the differences right now between WGA showrunners versus non-union television producers and writers. Please feel free to visit my website at www.filmtvlaw.com where I publish my entertainment lawyer Q&A with years of inciteful articles and advice on the film and television business.

WGA Writers

First off, there has been an ongoing dispute between the WGA and the Association of Talent Agents for three months now. The Writers Guild has required members to fire agents that have not signed a new Code of Conduct that prohibits packaging work on behalf of production companies and networks, and also prohibits agencies from forming their own production companies.

So, for WGA members, none of the large packaging agencies have signed the Code of Conduct. The good news is that there are some great smaller agencies that have signed the Code of Conduct that you should consider. Otherwise, WGA members can choose between management firms and entertainment law firms for representation.

Talent Managers

Getting a talent manager to represent the new project is an option for both WGA and non-WGA showrunners. If you have a track record of financially successful projects you should look into management representation.

However, if you are located in either California or New York there is another hurdle for talent managers to overcome to be able to directly pitch projects to production companies and television networks. Both states have a version of the Talent Agencies Act. This was a very well-meaning law passed nearly 50 years ago. Originally it was set up to prevent agents from negotiating talent contracts on behalf of clients unless they paid a bond to the State, as well as to cap the percentage agents could charge.

Most talent managers are not also talent agents and so they are legally restricted from “soliciting employment” for their clients by the Talent Agencies Act. It is not completely clear what “soliciting employment” means, especially as it relates to showrunners, but it is the reason that most managers require clients to also have agency representation, as a way for them to avoid any liability under the Talent Agencies Act.

Given that the average management fee is 15%, if agency representation is also required, you are then at 25% in commissions off the top. However, there are no upfront fees.

Entertainment Law Firms

Law firms like BLAKE & WANG P.A. that exclusively represent film and television projects have always been exempt from the Talent Agencies Act, by virtue of the fact that entertainment lawyers are already required to be licensed by the State Bar.

In fact, the Talent Agencies Act was originally drafted to protect agency clients from agents who were negotiating contracts and taking commissions, without any State license or oversight. The State Bar Act in California went into effect in 1927, more than 50 years before the Talent Agency Act.

Therefore, entertainment lawyers are not prohibited from “soliciting employment” for clients and are the only other group besides agents licensed to represent talent clients directly to production companies and networks in California and New York. Other states have different laws, but most have subsequently passed some form of the Talent Agencies Act.

One difference from talent agencies and management companies is that entertainment law firms do not work on a commission. The State Bar prohibits entertainment lawyers from making the sort of client agreements that agents and managers do, so for that reason hiring an entertainment law firm will require some startup capital.

Talent Agencies

For non-WGA showrunners, talent agencies are another great option for representation of film and television projects. Ideally talent agencies will be able to leverage their other name cast and directors by “packaging” them with your series project.

That is one of the reasons why the big four talent agencies, WME, CAA, UTA and ICM have been the primary targets of the WGA dispute with agencies. These four very large agencies represent most of the biggest name performers and directors, and hence can add a lot of value to a project they represent.

Smaller agencies are less likely to have the name talent in-house, and so their business will involve shopping the project to other agencies and cast, before contacting production companies and networks.

A lot has been made of the big four agencies being paid by production companies and networks for their packaging services, hence avoiding the commission system altogether by actually getting paid by third-parties.

However, it really is a bit unrealistic of writers to expect agencies to finance the development of their series projects. Packaging has created a conflict of interest, but let’s face it, the only entity that can really pay for the development of a television project is the producer. So long as writers stay out of the business-side of entertainment and want to be courted by others, there will always be a cost problem with the current vision the WGA has of television and film development.

Please feel free to contact our firm about television representation, shopping and packaging services. As with all complex entertainment matters, please seek experienced entertainment legal counsel before making legal and financial decisions. This article is for information purposes only and does not represent legal, accounting or tax advice.

- By Brandon Blake, Entertainment Lawyer

Question for FilmTVLaw.com:

A friend of mine is investing into a movie and asked me to get involved too. I’ve never invested into that industry, but from my layman’s view the movie seems to have merit. What should I be looking for to protect myself if I decide to dive into this one?

Answer by Brandon Blake, Entertainment Lawyer:

Thanks for a great question about investing in a feature film. Over the last 19 years I have represented many feature film investors. Feature film finance has changed quite a bit over the past few years thanks to all the new tax incentives available to help reduce the risk of film and television investing.

I want to focus on the whole process today, from the most basic things to look for in a film investment, to the more sophisticated incentives and tax credits that can make a film investment attractive.

The Package

First off, anyone new to feature film investing should be aware of the concept of packaging. Packaging is what the big agencies like WME and CAA do for client production companies, when they attach famous actors and directors to a project to increase the marketability of the film.

No matter how great the concept and the script might be, distributors and sales agents will be looking for well known cast to get the audience to turn out for the film.

While there are a number of ways to demonstrate the interest from cast, such as Letters of Intent, the fact is that a Letter of Intent will not ensure that that cast member will actually appear in the film.

Instead, investors should look for guarantees in the financing materials that particular actors will appear in the film, thereby securing the investment with bankable actors and directors.

Distribution

Again, many independent filmmakers rush into production, and then end up with a finished feature film with no distribution. That generally happens because the film producer is deriving all the benefits from the film from the production of the film itself. Most likely the producer and director fees are tied to production, and the filmmakers can use the film as a kind of resume to make their next feature.

But the investors end up paying for a resume that might not be destined to finding distribution. So, investors should look for feature film projects where the filmmakers are lining up distribution before the start of production.

That is not to say that it is realistic to see a signed distribution agreement before the financing of a film occurs. If a distributor made that type of a commitment it would likely also be providing financing and then there would not necessarily be a place for private equity investors at all.

But investors should look for guarantees from the film producer that distribution will be lined up before production commences on the project.

The Offering

It surprises me that there are still a large number of high-level production companies and film finance companies that do not conduct the legally required securities filings with the Securities and Exchange Commission (SEC) and with the State Securities Administrators.

From an investor standpoint there are a couple of reasons why you want to look for feature film and television investments that have been filed with the SEC.

1) Tax Incentives: There are many tax incentives that will not be available, or will not be easily claimable, without the right securities and finance paperwork. For example, the new Section 181 tax deduction, which relies on Section 168 bonus depreciation, requires a detailed process of qualification for the film, as well as the investment to be properly organized, to take the new tax incentive.

The best way to ensure that you can take the new Section 181 tax deduction is to make sure that all of the tax information and qualification materials are part of the securities offering. No law firm will take the risk of qualifying a film or television project after the project has already been produced.

Likewise, there are numerous other tax incentives that can virtually eliminate the risk of investing in film and television, but unless those incentives are part of the financing documents, an investor cannot guarantee that they will actually be available to the investor after the film is completed.

2) Liability: There are two factors to this issue.

First, a properly filed investment company and offering ensures that you as the investor will never be liable for anything more than your initial investment. Legally that cannot be guaranteed through a simple investor agreement or partnership document. Unless there is a properly filed investment company and offering, liability arising from the film or television project could actually be charged to the other partners or joint venturers in the project, including the investors.

Second, many investors I work with also tend to get involved with selling the investment to other friends and associates. That might be on a casual basis, or it might be for a commission. In either way, the only way that the investor can make sure that he or she does not take on liability for introducing other investors to the project is if the offering is properly filed with the SEC and the states where the investors reside.

It is really in the film producer’s interest to properly file the investment with the SEC because then he or she knows that investors will have the confidence to sell the project to others.

3) Clear Documentation: The SEC and the State Securities Administrators require clear and detailed instructions about how the investment is going to work and the rights that the investors will have in the project.

This is to the advantage and benefit of the investor, who otherwise might be in the dark as to the way that the investment works. In fact, one of the biggest problems I see with film and television investments is that no one knows how the profits of the film will be distributed to the investors. Typically, this is not intentional, the filmmakers simply are not concerned with financial aspects. Their goal is to produce a film, and very little thought is given to how investors will benefit from the project.

Tax Incentives

Finally, the number of tax incentives available today for film and television production is truly incredible and to not take full advantage of these incentives is a real lost opportunity for the investor.

For example, investors today can take a 100% tax deduction under the new section 181 tax deduction, with section 168(k) bonus depreciation, for a film or television investment.

That is just the start of the incentives and tax credits available for feature film and television production. If the film investment you are looking at is not telling you about these incentives and credits, it might well be that the filmmaker is taking these credits and incentives and not passing them through to the investors.

A good film investment should come with a thorough discussion of tax incentives and the ways that you as the investor can benefit. There should also be an attorney opinion letter from the production company attorney, which will allow you to more easily explain to your accountant or financial advisor how to take the deduction or credit. Remember, it is the attorney for the production company that can certify that an incentive or credit is available.

Feel free to contact my firm about reviewing any investment you intend on making in the film or television industry. We have reasonable rates and 19 years of experience protecting investors in the entertainment business.

- By Brandon Blake, Entertainment Lawyer