It appears that everyone who has a camera can be or thinks he
or she is a filmmaker. The resources are
such that make this realistically feasible for the financially deprived. As digital distribution options grow
plentifully on a global scale, getting your movie out and bringing money in
becomes less of a pipe dream and more of a possible reality. Micro-budgets and crowdfunding avenues make
upfront costs shrink to a fraction of what it takes to make a Hollywood-level
film, and the evolution of acceptable formats satisfy consumer pallets
sometimes in 4 minutes or less (i.e. ‘webisodes’). The rules have changed and the processes have
simplified. Truly, anyone who has even a
cellphone camera can make the next Blair
Witch Project or Clerks 4.0 – the
reboot. Still, as options increase so do
legal complications. New ‘Acts,’ policies and laws regularly crop up to ‘protect’
artists while conversely deterring them from producing. What often deters artists from making a
living with their craft is the multitude of legal hurdles to hike under and
over. I may be speaking blasphemy to the
independent, rogue creative, but thank goodness for lawyers. Without them, our ignorance may make the
difference, as Ana-Klara H. Anderson of the law firm of Thomas & LoCicero PL
says, between bank or bust for an artist’s labor of love. Without legal protection front-loading, she
says, “You invest a lot of time, money and creativity only to be stopped in
your tracks. All that hard work would be
for nothing. It could bankrupt the
work.”
So what types of IP protection should a filmmaker consider before a film captures first light? According to Dr. Anderson, the producer
should own every piece of intellectual property associated with their
project. This includes the copyright to
the creation itself as well as the right to use the idea, concept or work for
post-production purposes (i.e. distribution and exhibition). It is similar in the music business to the
difference between an artist’s musical work and the sound recording of that
work itself. Permissions are required
for both. Other assets that need
protection are sound, script, music and the right to use the title. Yes: the title. The film’s title becomes its trademark,
captured in a catch phrase as its identifier.
Also, if a filmmaker desires to place specific products within the film
for funding, permission needs to be secured before – not after the fact. These points seem obvious, but they wouldn’t
need articulation if filmmakers practiced them.
Obviously.
 |
| Smokey Says... |
One of Dr. Anderson’s points stood out poignantly in its
obviousness: Filmmakers contract with actors to employ their ‘product.’ An actor’s performance secured in a tangible
medium, i.e. film, is a copyrighted product.
As such, permissions required are dependent on variables, variables
Dorothy Fadiman, a social change documentarian considers based on the
situation. In an interview with Tony
Levelle of MicroFilmmaker Magazine, Dorothy says there are two releases she
acquires for each shoot. “’The first is a “model release” or “signed permission
form” from each [talent].” She says the two
are important for both the film itself and for publicity afterwards. All permissions, Fadiman says, are designed
not only to protect the artist but also the filmmaker. Dr. Anderson concurred. She stressed the importance of “memorializing
things in writing.” Word as bond holds
no water in court and, from history, intellectual property disputes are diverse
in their frequency. This is why seeking
legal council for permission review and advisement is an essential
investment. Tony Leville echoes this in
his MicroFilmmaker article by saying, “the money and time you spent finding and
talking to an entertainment lawyer could very well turn out to be the best
money you spent on the entire production.”
I’m a fan, Tony. I’m a fan. Glossing over the legalities associated with
filmmaking, out of complacency, is a dangerous tightrope to dance on.
My interview with Dr. Anderson was both informative and
reassuring. Reassuring in the sense that
all the textbook warnings and formal education I’ve received are true. We, as artists, pour our heart and soul into
our craft. It takes tremendous self-investment
to turn a vision into reality. It may be
true that all capable thought and effort is spent on its creation, but that is
no excuse for disregarding legal formalities and laws. The hassle is no hassle if viewed as a shield
and protection for both you and the work itself. In the immortal words of Smokey the Bear, “Only
YOU Can Prevent Forest Fires!” Boy I
hope using that tagline passes the “fair use” test. I might need to consult my lawyer on that
one.
Ana-Klara H. Anderson, Ph.D, Esq.
In 2009, Ana-Klara earned her law degree from the
University of Florida Levin College of Law and her Ph.D. in Media Law and
Policy from UF's College of Journalism and Communications. Ana-Klara has authored numerous articles for
media law publications and has been a frequent guest lecturer throughout the
southeast on First Amendment and media law issues. In her commercial litigation practice,
Ana-Klara litigates commercial disputes for corporate clients, including
contract disputes, class action defense, business torts and related areas. She
also prepares and reviews contracts and other documents related to business
operations and management, with a particular emphasis on the arts, entertainment,
and publishing industries.
Areas of Practice:
Media/First Amendment Law
Contests & Sweepstakes
Corporate Litigation
Arts & Entertainment Law
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