Remember those guerrilla days? Where you’d throw all caution to the wind to grab that shot before education taught you otherwise. Even if you haven’t gone through that phase, learning the hard way that you need to protect yourself on paper can be an infuriating and sometimes costly experience. Many of us have been burned by a hand-shake agreement or been caught somewhere without proper credentials. It’s not best practice and it’s not a professional approach.
If you’re looking to successfully execute a production, you’ll need to acquire a long legal paper trail along the way. If you want to guarantee that everyone gets paid, if you want to avoid a tax audit, if you want to avoid getting sued, if you want to sell a product, and if you want to avoid going to jail in some severe cases — You need to cover your ass legally!
Let’s take a basic look at production without going too deep into the world of legalities associated with video production. Because film production development with the intention of releasing a profitable media product deals with much more legal jargon that we’re not going to cover here.
Let’s get into it!
After a Producer and an Investor of a production have signed the necessary agreements to establish authority, use of the budget, intellectual property, and expectations (which is a whole other blog), the producer then puts together a team to execute the production. What will happen then is, the producer will either start an LLC or find an existing ProCo that acts as the incubator entity that coordinates and shoots the production.
When this happens, the production is ready for the next phase. To accomplish this next phase, you’ll need to cover your tracks and you’re likely to need the following legal documents…
First things first — You need to talk about the budget. You can’t coordinate or plan one thing without knowing where you stand financially. The Producer will throw out a ballpark number that is vague and the ProCo will gather all info about the vision — script, outlines, whatever what have you. The ProCo will then assess, draw up a plan of attack and put together a precise budget with a hard total. Typically the budget is contained within a “pitch deck” or proposal that also includes a synopsis, story/mood boards, etc. The Producer will receive it, they’ll jostle back and forth until they reach an agreement.
Once the budget is agreed upon, it’s now time to draw up the Production Agreement. You could write an entire blog just on budgeting for video production and touch on topics like contingencies, producer fees, per diems, travel costs, and other things you need to consider when putting together an estimate (look out for that in the future).
If you need help drawing up a proper budget, there is software available that will provide templates to build from and help guide you through the process. Check out available software like Hot Budget, Movie Magic, Showbiz, and more.
This a service agreement of sorts where one entity (Producer) contracts a person or ProCo to produce media for various purposes and clients. They can range from a corporate level to an individual level. A production agreement includes specific verbiage about the vision, the equipment used, the timeline, and payment structure. They also include clauses that concern marketing/royalty and early termination. In the U.S., generally a Production Agreement is subject to the laws of the state that the production agreement is created and signed in, so make sure you do your homework.
There are two types of production agreements. Type one is when the language of the contract states that the producer owns the content IP. You need to be careful here before engaging in a production and signing on the dotted line. Make sure you’re in agreement about who owns what and put it in writing. Type two is where the contract states that a company or corporation owns the content IP. It’s typical practice for a major company/corporation to have enough werithal to clarify their ownership over the content produced. You’d be surprised how many companies fail to cover themselves and fully read the contract. They end up losing control of the content they paid money for, but that’s the cost of letting a noob marketing rep manage a production shoot.
Every production needs a certificate of insurance (COI) and if you don’t have one, you’re putting yourself and other people at risk. If you’re looking to get a location permit, if you’re looking to work with a marketing or talent agency, if you’re looking to rent gear, and just about everything else concerning a production -- you’re going to need INSURANCE! Pay the fees, it’s well worth it in the end to be safe rather than sorry.
At the very least, you’ll need to acquire general liability that will cover bodily injury and property damage that might occur while production is shooting. If you want more advanced coverage, that would include specifics like copyright/clearances, errors/omissions, and unique risks. Don’t get caught slipping and coordinating a shoot without one. Because when Murphy’s Law rears its face, you’re going to be glad you chose to execute like a pro.
Silence isn’t only golden in the theater house -- it’s golden everywhere. Especially if you’ve signed an NDA, you better keep your gossiping mouth shut or you could find yourself in some serious legal water -- the boiling kind.
A Non-Disclosure Agreement is absolutely essential for most professional productions especially films, TV, and commercial campaigns. We all know how quickly word spreads and not only that, how quickly ideas get stolen, copied and replicated to turn a quick buck. When you lose control over the impact and impression you are trying to make -- you’re losing money and you’re losing valuable data. So it’s no wonder many productions are serious about their cast and crew keeping quiet about the project.
To anyone’s prying eyes inquiring about what the production is -- it’s a mayonnaise commercial. On the flip-side, producers will get cast and crew to sign NDA’s to keep quiet about misconduct or careless accidents that might occur while on set. In its simplest terms, it’s a legal contract between two more parties that conveys a confidential relationship that exists between all parties involved and outlines a restriction of access to some degree.
Never let a person you can identify that has made it into a frame walk away without signing a release form -- it can come back to haunt you. Let’s say a person is in the video and they decide down the road they don’t like the video or the company that made it and wants the company to take them out of it. Well unless you had them sign a release, you are legally at the mercy of their decision. They have full control over any portion of media content they’re being exhibited in and you have to oblige their wishes.
Now if you had them sign the release -- You tell them tough luck and to have more foresight in the future. But seriously, you now have the control. Don’t forego that small step that guarantees your autonomy over the content you paid good money for. In basic terms, all a Release Form is are contracts that state an individual person has given a ProCo or Producer their permission to film them or their property. Yes, this isn’t only necessary for talent, it’s also necessary for any kind of property (House, Car, etc.). You can find plenty of generic templates online that you can modify.
This is by far something you do not want to undermine. I’ve been on plenty of shoots where random bystanders walk up to production and ask if they have permits. You always want to secure a permit and not only that, you should carry it with you whenever you’re on location so you can present it in a moment's notice.
They’re not hard to get. You just need to navigate to the state government website which will navigate you to the individual town/city website where you can navigate to the Marketing & Communications Department and get in contact with them to negotiate terms of the productions. Typically they are very lenient and there is no fee. This might not be the case with all locations. Most places will be happy to welcome your production, but some enjoy their privacy. You’ll need a Certificate of Insurance to present to the Marketing/Communications Department so be prepared.
Most pro productions are executed with a crew of at least 8 or more members and any number of talent. To cover yourself financially/legally, you’ll need to acquire w9’s from all crew members and any talent agency or individual actor. This way when taxes roll around, you can avoid an audit and stay compliant with all rules and regulations.
Any employer to employee arrangement uses a W-4 form, do not confuse this with a W-9 or 1099. W-9s are used in business to contractor arrangements. If you paid a contractor more than $600 throughout a year, you’re required as a business entity to file accordingly.
Independent Contractor Agreement
This is exactly as it sounds -- it’s a contract between the client/company and the contractor that details a number of stipulations. Things like the services that are to be provided, background information, terms of agreement, performance expectations, currency and compensation, reimbursement, confidentiality, ownership of IP, and more. This covers both parties legally and makes for a pleasant and honest employer - contractor relationship. When there is no independent contractor agreement, you might need to worry, this could be a red flag. There are tons of free templates online that you can revise. Always demand to sign one.
Whether it’s between a single person or a rental house, if someone walks away with someone’s gear without signing a rental agreement, they can damage the equipment all they want and they’re not legally required to replace a thing. That’s scary! -- All of the rental houses I’ve ever dealt with demand you sign a rental agreement which details terms of the lease, responsibility in the event of damage, type of insurance, etc. You really need to watch it when renting gear. Some houses can be nazis about missing accessories. You don’t want to be stuck paying 80 bucks for a screw. Always take care of rented gear as good or better than you would your own.