Paper Trail, No Fail: How to Stay Out of Legal Trouble? Document Everything
Also known as “Contracts or it didn’t happen,” this practice might help you get out of jail—or at least sleep better at night.
“I can’t afford an attorney, but I need to know how to protect myself. What’s the one thing I should know?”
I can’t tell you how often I get this question from indie moviemakers. And hey, I can relate—before becoming an attorney, I was a documentary filmmaker. I rarely had the funds to budget for legal counsel, but I was always keen to stay on the right side of the law. Now that I’m a lawyer, I often think about the legal information I wish I’d known when I was a moviemaker. While no piece of advice will get you out of every jam, there is something that can really cover a lot of bases:
And I mean everything. Creating a paper trail over every aspect of production is probably the single most effective thing you can do as a moviemaker to stay out of legal trouble. It allows you to rebut any argument, prove any transaction, and demonstrate to financiers that they’re never going to have to worry about going over-budget on one of your films.
So what, you ask, is everything? Here’s a non-exclusive list.
- Receipts, invoices and purchase orders for every penny you spend on the film
- Appearance releases from anyone who appears on screen (if your film is a documentary)
- Agreements for every actor you cast if your film is a narrative. And not just your main cast, either; this extends to bit players and extras
- Location releases for any location you film at that you don’t own
- Logo releases from any brand that is conspicuously visible
- Crew deal memos for every crew member you hire—including yourself!
- Permission from the owner of any material you adapt
- Material releases from the owner of any archival material you use. Don’t rely on fair use for copyrighted material you don’t own. Even if you have a good argument why fair use applies, studios won’t release the film without permission and festivals won’t screen it, either
- Releases for any music that you use, even if you commissioned original music
Uh oh. I know what you’re thinking: A lot of those things I just listed sound suspiciously like contracts… And you’d be right to think that, because they are. The conventional wisdom among artists is that contracts are too hard to draft, take up too much valuable time, and are too hard to read. I think that’s why so many moviemakers avoid documentation like the plague. Contracts are intimidating and get in the way of the fun stuff. But while they’ll never be a bundle of laughs, they’ll prevent you from getting sued (which will leave more time for fun stuff later on).
In order to have a legally binding contract, you only need three things: an offer by one party, an acceptance by the other party, and an exchange of promises, goods, services or money between the parties. In other words, both parties have to give something to get something. We lawyers call this “consideration.” In a typical contract, one party provides a service or a good while the other party pays them with money. When you buy gaffer tape at Samy’s Camera, you’re engaged in a contract with the store. When you hire a key grip on your film and pay him, that’s a contract. When you license archival footage from Getty Images, that’s a contract.
And while the best contracts are formalized affairs, they don’t always have to be. Approving or agreeing to something over email can be sufficient to meet your needs. In many cases, a legally binding contract can be made in just a few sentences. You can even use plain English, since legalese doesn’t make a contract more valid and only complicates the drafting process.
In general, you should take it as an axiom that the more paper you have documenting how your film was financed and produced, the better off you’ll be. Documentation is obviously not the only thing that will cover your ass when putting together a film, but it will go a long way. Of course, it’s ideal to have a full conversation with a lawyer who knows your specific situation—but if you can’t afford one, this strategy will help you feel safe moving forward. MM
Have a legal question you want our advisers to answer in a future installment of Cinema Law? Send it into firstname.lastname@example.org with the subject line “Cinema Law Question.”
This article appears in MovieMaker‘s Summer 2016 issue, currently on newsstands.
Gregory R. Kanaan, Esq. is a Boston-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most.
The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.
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