Tuesday, February 8, 2011

Indie Filmmakers and their Legal Mistakes

An Independent film always begins with good intentions, optimism, and trust. With shoe string budgets and limited resources, filmmakers rely on favors, goodwill, and an almost delusional assurance that it will all work out in the end.

However, the blind faith that drives the artist can often spell disaster at some point down the line, when promises and ill-defined agreements cripple a film or ruin filmmakers who didn't understand the legal entanglements they were getting themselves into.

I hear the same stories from screenwriters again and again. Tales of strife, betrayal, and outright theft. My friend, Jordan Susman, who I met when we were both graduate students at USC's School of Cinematic Arts, heard the same stories, and after years struggling as an writer/director, he switched careers and became a entertainment attorney, one with a focus on independent film.

Since so many readers of this blog are putting together smaller budget projects, I asked Jordan to answer a few questions, hoping I could help others could avoid the most common mistakes.

Disclaimer: nothing stated in this blog should be construed as legal advice. Every situation is different. If you have a specific a legal question, you should contact a lawyer.

Sean Hood: You are an entertainment attorney, but you have a very specific focus on independent film. Why did you chose this direction for your career.

Jordan Susman: I am, and always will be, a recovering filmmaker.  If I had the artistic temperament (and perhaps a little more talent), I would still be making movies. Instead, I represent filmmakers and other "talent" in litigation matters -- usually against people and companies with a lot more resources.

SH: How has your experience at the USC school of Cinematic Arts, and your experience as an independent filmmaker shaped your approach as an attorney.

JS: I have a great deal of empathy for my clients. I know how hard it is to make a movie -- the passion, drive, determination and emotional rollercoaster it entails. In addition, it's given me the tools negotiate effectively on behalf of my clients because I actually know the substantive issues. To give one example, I was in an arbitration, fighting over control of a movie. The other side offered to give my client one week to edit a feature film. One week! Since the other attorney (who specializes in entertainment law as well) had never been in an editing room, he had no idea that one week was not sufficient time to edit a feature film.  But because I knew the process, we were able to negotiate a workable schedule for completing the film.

SH: What are the three biggest mistakes Independent Filmmakers make that can get them into legal trouble later.

JS: Number 1 by far is ye olde verbal agreement. Yes, oral contracts are valid and enforceable. But having something in writing and signed by both sides cuts out a lot of confusion and misunderstandings down the road.

Number 2 that I see all the time is people not registering their scripts with the copyright office. If you want to sue someone for copyright infringement, registration with the WGA just doesn't cut it, it must be registered with the copyright office. It only costs $35, but it entitles you to potentially receive your attorneys fees and $150,000 per infringement if you sue someone.

Number 3
dovetails with Number 1: People are afraid to have difficult conversations early on and often kick the can about decisions down the road. It is better to work out your credits and roles on the movie when you're still friends than waiting until you're bitter enemies. (Sorry to be so negative. I'm a litigator, I see people at their worst.)

SH: What do Indie screenwriters need to be concerned with, from a legal perspective?

JS: Always register your scripts, even outlines or treatments, with the Copyright office before you share it with anyone. If someone is giving you serious notes, or is making additions to your script, get something in writing that their contributions are work-for-hire and they are not a co-author. (Unless, of course, that is your intention.)

SH: Filmaking is filled with strife, arguments, broken promises and misunderstandings. When is it time to hire an attorney?

JS: As soon as there is an agreement to do something, like option a script, produce a movie together, develop an idea together, etc. (I'm saying this as a litigator -- not as someone who negotiates and writes deals. So, I have no financial interest in answering this way.)

SH: What are some common kinds of legal problems that your clients hire you to solve?

  • All sorts of fights over who controls a film, including artistic and financial control. 
  • I see alot of cases where two people work together on a project for months / years, and then one of the "partners" goes and sells the project without the other partner.
  • Writers who don't get paid.
  • Producers who don't get credits they were promised.
  • Producers firing the people who actually made the film (ie. directors, DPs, editors), and then reneging on their commitments to pay.
  • I also get hired a few times a year to get websites to cease and desist from posting copyrighted material.
  • Online defamation is a pretty big right now, with people posting slanderous material about other people.
  • And lest I forget...I sometimes have to get restraining orders against stalkers.

SH: When is it NOT a mistake to rely on a "handshake deal" or "verbal agreement"

JS: It is ALWAYS a mistake to rely on a "handshake deal" or "verbal agreement".

SH: What's the craziest thing you have seen in your practice?

JS: The level of greed exhibited by some people is extraordinary. This greed is usually combined with a sense of entitlement that the rules don't apply to them -- even when there is a written contract.

SH: What is the best part of your job?

JS: I get to empower creative people. And usually they have been mistreated by people who are NOT creative.

SH: Ha... perhaps the "artistic temperament" you referred to earlier contains mostly foolish ambition and blind optimism. I plead guilty. But every artist needs someone to watch his or her back.

Again, nothing stated in this blog should be construed as legal advice. Every situation is different. If you have a specific a legal question, you should contact a lawyer. Mr. Susman can be reached at:

Law Office of Jordan Susman
1100 Glendon Av., 14th Floor
Los Angeles 90024
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Kike said...

I have a big artistic question, Mr. Hood: how can you reduce the potential budget of a screenplay without "injuring" the quality of the movie? Of course, it depends on the movie itself, but, do you have any kind of tip, hint or trick? Thank you in advance.

Sean Hood said...

This is a great question and probably deserves its own blog article. Look out for "Writing for a Budget" coming soon...

RedRybbon Film & Media said...

Hi there...
I was wondering if indie filmmakers are alliwed to use a piece of music in their film, without Signed/ Written agreement, although FULL credit us given to the artist of the song- mysic.
could you help with this please??


Sean Hood said...

Eugene: NO!!!!!

Check out my blog on Music Rights: