An indie film-supportive attorney offers legal insights that every low-budget filmmaker should consider to stay out of legal trouble.
[Disclaimer: No Film School is no substitute for a lawyer. This article should be interpreted as an introduction to Fair Use. It is not a legal document.]
In the world of indie filmmaking, everyone loves the grassroots, rags-to-riches stories of indie filmmakers shooting passion projects on shoestring budgets as they climb their way to Hollywood success. In a way, it’s what drives the industry and pours money and submissions into film festivals, online contests, and film schools.
However, while doing it yourself on minimal budgets may be the only way for some, it doesn’t mean your projects are impervious to potential consequences—especially legal ones. So, we spoke with attorney David Paetzmann who offered to spend some time providing suggestions to indie filmmakers about a few things to keep in mind to avoid legal troubles and protect yourself and your films’ interests.
1. Create an LLC for your film
In terms of limiting liability, if you produce a film without incorporating and something goes wrong during production, the repercussions can be significant. Creating a Limited Liability Company, as the name implies, limits a filmmaker’s liability, which can protect you from personal liability if the unexpected happens.
The first piece of advice is crucial for protecting yourself as a filmmaker. Paetzmann suggests, even for short films, that you consider creating a Limited Liability Company (LLC) for each film you produce in your state of production. LLCs are relatively easy and inexpensive to file (and in some states can even be done online), and can be a huge help in protecting your rights and liability, or responsibility, should anything go wrong with the production.
2. Document everything
To truly protect yourself in film production, it’s important to obtain written releases and clearances for everyone and everything. From actor releases and location clearances to distribution deals, it’s important to stay up on your documentation during production and be ready for any situation that arises.
Not every production has the luxury of having a line producer to handle all the documents needed for production. As such, getting (and storing) proper documents can quickly be neglected, which can be a huge hassle should you need them later and be forced to track down every cast or crew member to obtain a signed release. However, not doing so can really hurt you in the long run. Imagine that you've spent a year making your film, only for a location you shot at to prevent you from releasing it because you don't have proof of their permission.
3. Learn employment laws
Employment laws differ from state to state, but it’s important to understand the difference between employees and independent contractors. For example, under California law, anyone who works on your production is probably going to be considered an employee—which means a much different set of rules than for independent contractors.
When you’re an independent filmmaker putting together a crew, it’s easy to think about it as a group of friends coming together for a project, when in reality (at least, legal reality), you’re hiring together a team of employees or independent contractors. These distinctions are not to be taken lightly as (depending on your state) they can mean very different things in terms of compensation, rights, and liability.
4. Get insurance
Producing a film without any budget is very risky because anything can go wrong. For example, if an actor or crew member is hurt during production, who is liable? Do you have to pay workman’s compensation? It’s important to be prepared and covered by workman’s compensation insurance in case of mishaps. Also, obtaining Errors and Omissions (E&O) insurance is essential for distribution purposes.
Just as it’s very risky and dangerous to drive a car or own a home without insurance, it’s just as much of a risk (or possibly more) to put together a film. Not only are you dealing with the safety of your crew, you also have potentially thousands of dollars of equipment to think about. You'll need production insurance during the shoot, but you can generally wait to get your E&O insurance until post-production.
5. Be aware of copyrights, trademarks, and privacy rights
In a perfect world, if I was representing a film producer, I’d want to review dailies to make the producer aware of any potential infringement on copyrights, trademarks, or privacy rights.
Think of filming a scene on a busy street downtown. You need to be aware that focusing on automobile logos or product labels during a scene may give rise to trademark problems. Focusing on specific individuals on the street can also be problematic as you don’t know if everyone in the crowd consents to being in your film. All of which could put you in a precarious legal position.
6. Understand the intellectual property of your film
Yes, you wrote your script, but is it really legally all yours? Do you have the rights to all source materials? Is it really your original idea? Did anyone put notes on the screenplay as part of a collaborative process? In reality, anyone who has contributed to the script has rights to it. It may feel small, but what if your low budget film becomes wildly successful like the Blair Witch Project, could someone subsequently claim rights to the screenplay in a lawsuit against you?
Understanding IP law is no small task, but there are certainly steps you can take to ensure that your intellectual property is copyrighted and under your control. The biggest would be to get your script registered with the United States Copyright Office (which, again, isn’t too expensive and easy to do online). It may seem innocuous early on, but you can be sued for even the smallest of grievances.
Entertainment law is extremely complicated and each filmmaker’s situation is different and so none of these comments should be construed as official legal advice. While these tips should help with generalities, filmmakers should consult with an experienced entertainment lawyer when making decisions with potential legal ramifications.