Master Class: Film & the Law with Kara Lambert #111

Join Pete W. Salsich III and Kara Lambert in this week’s episode of The Screen Lawyer Podcast! 

Presented in collaboration with Capes Sokol and Cinema St. Louis as part of the St. Louis Filmmakers Showcase, discover key takeaways from their recent Master Class workshop titled "Film and the Law." This episode unveils the fascinating crossroads of law and filmmaking. Get ready to explore the world of copyright safeguards and the importance of rock-solid contracts in the film industry.

Original Theme Song composed by Brent Johnson of Coolfire Studios.
Podcast sponsored by Capes Sokol.

Learn more about THE SCREEN LAWYER™ TheScreenLawyer.com.

Follow THE SCREEN LAWYER™ on social media:

Facebook: https://www.facebook.com/TheScreenLawyer
YouTube: https://www.youtube.com/@TheScreenLawyer
Twitter: https://twitter.com/TheScreenLawyer
Instagram: https://instagram.com/TheScreenLawyer

The Screen Lawyer’s hair by Shelby Rippy, Idle Hands Grooming Company.

Transcript

0:00

Hi there. On this week's episode of The Screen Lawyer podcast, I'm joined by my associate, Kara Lambert. And we're going to present to you sort of a shortened version of a masterclass we recently gave as part of the Saint Louis Filmmakers Showcase hosted by Cinema Saint Louis. Right. We're going to teach you all the things you need to know that you didn't think you did. That's a really good way to put it and hopefully you'll get a lot out of this. Stick around. Hi there. I'm Pete Salsich, The Screen Lawyer and welcome to The Screen Lawyer Podcast. Today I'm joined by Kara Lambert, my associate here at Capes Sokol as part of our entertainment and media practice group and frankly, one of the smart young entertainment lawyers in this town. Well, thank you, Pete. Yeah, it's great to have you here, Kara. First time on the podcast. First time ever on a podcast. Oh, yeah. That's awesome. Okay, well, this people save this because it's going to be famous one day. So recently we had a chance, and it's really the third year in a row we've done it as part of the Saint Louis Filmmakers Showcase hosted by Cinema Saint Louis. Great organization, this town. Been promoting film filmmakers and the entire creative industry for more than 30 years. And we're very proud. We've been for the last three years our firm Capes Sokol and The Screen Lawyer has been a sponsor of Cinema Saint Louis is efforts both with the filmmakers showcase in the summer and the Saint Louis International Film Festival in November. And Kara and I developed this masterclass that we host every year for serious or seasoned filmmakers, but also brand new people interested in getting into the field to cover a lot of the legal issues that come up. Right, Because as you know, we see more often than not, unfortunately, people who've already fallen in love with footage, they're fairly far down the line, but they didn't get the contracts they needed at the start. Right. There's questions about copyright ownership and they run into problems. So the goal of this is to give you some of that same information and encourage you to check out all of the resources here in Saint Louis or anywhere, wherever you are. There are likely to be organizations that will help you with this stuff. But some of the key things we want to make sure we cover, really, we started by thinking about this as protecting your creativity. That's the goal. Right? You guys are the creative people. You're the ones taking ideas, whether it's for a feature film or a documentary, just a story you want to tell - something when you want to put it out on a screen. And our job really is to do one thing, make sure that that can happen. You can. We're not going to, you know, she going to hire us for editing or creative, you know, suggestions. We have opinions. We do not very good. Often. We wouldn’t take them either. No, that's right. But it's we have to make sure that you can actually get the work onto the screen. That's what we're going to talk about. And it all starts with this basic fundamental principle. Copyright and contracts govern all of this. All of it. There is no exception. And essentially, copyright law acts the way it does. And the only way you can change the way it acts is if you have good contracts. And the most basic principle is that every single second of footage on your work must be cleared. You must have the right to show that second or those 5 seconds are those 3 minutes or whatever it is. It's all got to be cleared. And what goes along with that is there needs to be just one copyright owner for the film, one entity. Often it's a specially formed LLC, but only one. And if you don't do that right, you can end up screwing that up. Right. I think every year we see people, we see some of the same faces, we see new faces, but we definitely always have someone come up to us afterwards and say, I had no idea. I don't know who owns all these copyright rights. And so we are excited to tell them, yes, that there needs to be one copyright holder and they need to get these contracts in place as soon as they can. Absolutely. And as soon as they can is is is an important part of that. Right. Because ideally, all the contracts are in place before any cameras start rolling because under copyright law, the copyright that legal right to own that work comes into existence at the very instant of creation. So if you're, you know, it's the moment you start turning the cameras on and recording copyright is in existence for whatever the camera captures. And so if it's if the intention is not that the camera person own the copyright, but that the production company or the director, the film maker, however you got it structured, then for that to be true, there has to be a written work for hire agreement already in place. But of course, sometimes they don't do that. So what are they? Are they out of luck? They're not out of luck. We definitely like to put a little bit of fear of God in you at the beginning because we would prefer that you do it at the beginning. Right? But if you haven't done at the beginning, that doesn't mean that it can't be fixed or these things can't be put in place after. But they definitely do need to be implemented to make sure that you can do whatever you want to do with this. Right. And there are ways to have an assignment of the copyright take place afterwards. You you can go back if you know where everybody is and if they're still accessible. And you didn't make them angry. Somewhere along the line they may assign their copyrights to you, but ideally you're getting it done in the at the start. And it's every human being that touches the film. Right. I think you made a good point there, Pete, that hopefully they're not angry at you now. Everyone's friends at first when there's no money on the table and there's nothing that's been filmed, everyone's friends, so you get a little bit more money involved. People start getting big. Then there's going to be some arguments with people that you never thought there was. So that's the big importance of this. Yeah, that's a really good point, because the point is that you're planning for success. You're planning that your film, your series, your videos, whatever they are going to be, whatever form they're going to take, those are going to be wildly successful. And that's when it gets a little harder to remind people what they all agreed to at the start. Right. And the key language is work for hire, a special commission, work for hire contribution to a collective work compilation, audiovisual work. That's all language from the Copyright Act. And it's really required in writing. It's not enough to just say, I intend for you to own it. You really are supposed to use the words work for hire to remove any doubt. And this is everybody involved the talent, the crew, the people working on the post-production side. All of this is design. The the process of production legal work, which we'll get to in a minute. Rights acquisition upfront. All of that is intended to get there. One copyright owner. So everything comes together and then that one copyright owner can control distribution, etc. And the key here is the contracts are going to govern this process because you've got to have them in writing if you don't have the contracts. Copyright law is going to say that anybody that contributed anything that is independently copyrightable, which means that several minutes of footage right there, stop, cut that is now independently copyrightable, if that was the only thing that was created, and if there's no written work for hire agreement, that camera operator owns the copyright, Right? Or not just the camera operator. Also the person giving the interview or anyone else on the screen. It's really important to remember that all of the people who contributed, there's multiple copyright to one piece of work. So that's why, again, we just keep reiterating these contracts are important to make sure that all these different people aren't coming after and claiming their rights in it. Exactly. Exactly. And in the in the initial stage before you start filming, there's often a phase called the what we call rights acquisition. And it's essentially acquiring the rights necessary to tell the story you want to tell. And they they're a little bit different. Often whether your your ultimate work is going to be a work of fiction, a new independent feature film or something where you where you control the universe. Maybe you have a writer who's written a book and you want to acquire the rights to make a movie out of that book. Well, there is a contract to option the rights from that book. If you're have an author or a screenplay or that you're commissioning a new work, there's a writers agreement, there's a commissioning of that work. Those are examples in the fiction world and then in the nonfiction world, they're all over the place. Right? Right. And I'm going back to your point, the writer, we just had a client not too long ago that was doing everything right up front. They had a friend who had written a book. Then they went to write a screenplay on the books. We got them an option agreement in place, but then that book was also based on someone's life. So we also had to get a life rights agreement in place to make sure that every single person's rights that were being used were, as we keep saying, in one place. Exactly. Exactly. And that's something that comes up a lot here as this notion as Kara just said, there are often more than one copyright or more than one set of rights within the process of assembling things to get on a screen. So let's say it like in a documentary context, for example, or reality arrangement, you know, in some ways the filmmaker is taking the world as they find it, but if they're telling some a story that needs to be documented, chances are they're also going to be using a lot of other footage, maybe old archival footage or old photographs or a mixture. Maybe some of these home movies, all these different pieces may be melded into the finished work, but each of those other pieces has independent rights. There's a copyright in some of these home movies. You don't really think about it that way, but it's true. It's probably, you know, Grandpa, whoever was carrying the old Super 8 around, maybe these days it'd be over iPhones. Yeah, it's still the same thing. And that's another point to just drive home here. Copyright law hasn't changed in this area, even though we all walk around now with fairly sophisticated movie cameras in our pockets. Right. Still the same set of rules, but inside. So let's say you, you know, grandpa gives you the license to use that home movie footage. All right, Now you have the copyright. But the people inside that footage have rights as well, right? Yeah. I just think about my little brothers. I used to film them with my Barbie camcorder growing up, and I'm on brand right now. I know just putting in the references out there. Right? And I just like to think that they probably wouldn't give me the license to use that footage Now I was growing up, but well, it's really like, you know, you didn't get your brother's assignment appearance release before you tracked them around - same with Grandpa at the backyard barbecue. The point is, you may have to look through layers of rights to decide whether or not you can include certain footage in your film. And the worst feeling in the world is falling in love with footage you can't use. So if you get something out of this process, just it's the legwork to do up front to make sure you're going to be able to tell the story that you want to tell. And you know, that leads then to the next phase, which I think is your favorite these days, right? Because you’re doing it all the time. And that's production legal, right? And production legal is basically a set of contracts and procedures we put into place when someone's creating a film. And that has to do with everything we've been discussing. The rights acquisition documents, clearance, fair use, licenses, materials release, all the things that give you the rights in the footage. Right. And and it's a fairly standard, if you will. They're not forms. They aren't just fill in the blank things. They get tweaked and in different circumstances, sometimes considerably, but they cover the basic set of situations. And as Kara said, there's that and we talked a little bit about that rights acquisition. This is other stuff that's already exists. This is not new footage. It's existing stuff that we want to use. That's the rights acquisition piece of it. And so you may need a film footage license, you may need some other licenses to use that footage, but now you're talking to other people. So if it's documentary or reality and you're interviewing real humans, you need appearance releases for those humans. If it's a work of fiction, you're going to need talent agreement. For those people that appear on screen location, you know, Did you have permission to be where you were when you were filming? That's included and a lot of times in certain locations. You may also need to want to include their own copyrighted works or logos or things that appear on site. And that's another piece that you need to. I think those are two big questions. We usually get is what about people? Because I'm sure you guys have seen in New York City people walking by of the extras. What about things like that? Do you need to get permission from every single person walking by? There's things as what is it called your area release. Area release. You put up a sign, then those people know they don't want to be featured on the film. They should avoid going down the street then. And there's also we get questions about what if you're in a bar and there's a neon sign in the back and do you need to reach out to the company to get that right? And we usually tell them it depends - a typical lawyer answer. It depends, but it does sort of I mean, in one one simplified way to think about it is if you have the ability, if it's a work of fiction, you have control of the universe, everything that's on your screen, you are responsible for staging. So if there is a, you know, Neon Beer logo in the background, it's going to be assumed that you have the right to do that and you got whatever license is necessary. If you didn't get that license, put a different thing in the background. Right. How important is it in documentary reality world you have a little more ability to take the world as you find it, but chances are it may be better just to get those things out of the shot ahead of time so that you don't even have the question of whether you've got it clear that I'm sure you guys have seen blurred images on reality TV or usually bigger reality TV shows where they know that that copyright owner is going to see their sign in the back and they're going to come and want some kind of compensation for that. And back to the point of of planning for success. You know, you may think, oh, this is just my little independent film. I’m going to show it to some friends in school or at the maybe I get in the film festival, but just plan for this thing being hugely successful and it finding its audience and suddenly it's on YouTube and now it's somewhere else. And now you've got these other opportunities and that's when you don't want to have to go back and edit and blur and take things down because you didn't get the rights up front. Assume you're going to be successful especially these days where you can become successful in the blink of an eye with social media and everything. People don't think that their things are going to get big. And I see people saying, I can't believe it got taken down. I didn't expect to get 100 million views. But you should. You should always expect it. Exactly. Exactly. And with our help, well, we'll help make sure you don't get it taken down. Right. The there's another part of this production legal process, which is really is sort of the more of the work we do after you have acquired all these other things. And that's this process of clearance and that's where the lawyer comes in And just make sure. Do you have, you know, these ten people have appeared. Do you have an appearance release from each one? Do you have all of the if there's logos, materials, do you have all those things, your location agreements? So some part of it is us just making sure you have all those agreements we just talked about. But then there may be questions that come up, you know, what about this? We didn't get this, but can we can we use this logo because we're just walking down the street or whatever And in the in the nonfiction world, can we use other copyrighted works without getting permission? Is it fair use? And, you know, Kara, you've now got a couple of fair use opinions. They can be challenging. They definitely can in going back to clearance and fair use. I remember the first time Pete came to me, he said, I'm going to need you to watch a movie today for one of our clients. And I was like, Awesome. And then about 8 hours later when I was going scene by scene, clip by clip, looking at all the music and footage, I was like, Well, this I understand now. This is why we get paid to do this. But yes, I've written a couple fair use opinions and they can be convoluted and kind of hefty sometimes. Yeah. And you in the what you're doing there, the reason you go through that process. So our good friend, a professor at St. Louis U likes to say that fair use is expensive forgiveness permission is often a lot less expensive than the forgiveness later. And that's in part because fair use typically comes up as a defense to a claim of copyright infringement. So you use some footage in your film. That footage existed somewhere you find on the Internet or whatever, and it helps to move your story along in your documentary. Okay, You didn't get a license name, You couldn't find whoever was or you didn't bother to try. And now your film is out in the world and somebody sues for copyright infringement saying, Hey, you used my footage if it fits under the category of fair use. And there's four factors in the Copyright Act and we go through the legal opinion, then you didn't need their permission. But one of the things that we often remind our filmmakers and you all should remember, you're going to need you should have a policy, an insurance policy that covers errors and omissions, professional liability for making productions. So it will defend a claim of copyright infringement. But when you fill out that insurance application, you're going to check Did you get releases for all the footage? Do you have everybody sign an appearance release? You check? Yes, yes, yes. But then the last question, somewhere in that application is going to say, are you going to rely on fair use? And if you need to at all, you're going to be required to submit a clip, log to the insurance company. You know, every clip that you're claiming fair use on and then a legal opinion letter specifically about those clips and that usage indicating that in the opinion of the attorney, this is fair use. That combination of clip log and opinion letter allows you submit that to the insurance company so that if there's ever a defense of a claim you have to make, it's covered by insurance. Very, very important part. Right. And it is still an opinion Just because, you know, we wrote it doesn't mean that it's fool proof- the law changes. Right. People interpret it differently. But as Pete said, the insurance company will then defend your fair use claim because you had that opinion and you went through the effort to make sure you were doing what was right. Right. So in that kind of that's the production and essentially the post-production part as well, right? Because you've got to gather all your footage in the post-production as you're going through your editing. You're making those final decisions, Can we use this? Can we use that? That's where the clearance and opinion part comes. But now what? How are you going to, you know, I guess on the front end, how are you going to pay for it on the back end? How are you going to make money distributing it? Those issues are another piece that we want to highlight very, very simply here. But there's really two primary ways to finance a production. One which is pretty rare, unless it's a really big production, is that you are effectively pre-selling the concept to a financier, a network or a studio, something like that. And you all you have is your treatment, maybe a five minute sizzle or a short, and you're hoping that somebody will fall in love with it and want to pay for the whole thing. And in that environment. And they will come in and they finance the entire thing. They cover the entire budget, and likely they'd end up owning the copyright and you'd get paid. You may get some back end, but effectively it's no longer yours to control. The other way, which is much more common is independent financing, where you literally are responsible for going out to raise all of the money that you need for that film. And this is where we talk about one of the most important things you can do, and that's to develop a true, realistic budget for your project. We have this conversation a lot of people who... I was going to say, Pete, you were told before not to bang on the table, but I can promise you guys he wanted to bang on the table when he was saying that right then. And that's a good point. Yeah. Because if you don't develop a true budget, then it's very hard to know whether you have enough money from your independent financers. That's the main thing. So let's say, you know, you think, okay, I need and I'm just going to pull some numbers out here. I think I need, you know, $500,000 to do all this footage and film and do the things and pay the people and and so forth. And that's what I need. But did your budget include and this happens a lot with independent filmmakers did that budget include paying yourself? You know, if you're the writer, director and producer, you think, oh, well, great. I don't have to pay a writer, director and producer. And yet that's not a real budget. Because what happens if for some reason the middle of it, particularly if you've already taken other people's money to get started, you twist your ankle or break your leg, get COVID, whatever, something could happen and you're no longer able to film, fulfill that job title. Well, you'd have to hire somebody else of the same level of skill in the same market, take the same amount of time to do that job. So what is the director’s fee? Right. I think another important one we talk about is camera rentals. People have their great cameras that they purchase themselves because they are investing in their career to start movies. But what happens is their camera breaks and now they need to rent one or buy a new one, right. Make sure even if you've paid that camera and completely off that you have the cost in the budget of what it would cost to rent another one and replace it. And there's something wrong with renting the camera from yourself, Right. You're in this business. This is these are all the things. And so you get a very detailed line item budget of all of the steps necessary to make the film. And that includes paying your lawyers. I know that sounds strange, but we are really serious in the entertainment legal space. Often, most often, our fees are negotiated ahead of time as a percentage of the budget. So one, we need to make sure that's a true budget, a real budget so that that percentage matches up. But more importantly, then that becomes a line item in the budget itself, so that when you raise, Oh, I need 500,000, well, maybe you need 600,000, because (not that the lawyers are that much), but there's lawyers. There may be additional fees to license music that you hadn't considered. There's the cost of your insurance policy. There may be marketing or distribution maybe you've agreed to. You know, these are all the fees, but somebody has agreed to work for a lower rate, but they're going to get compensated on the back end if you get the budget. The point is you have to really think ruthlessly about what the what what are all of the dollars I'm going to need to actually finish this and get it out on the screen without worrying about anything else. Right. That's your budget and that's critically important. And you need to know that before you start going out and trying to raise private financing, because the worst thing you can do is get a bunch of money from other people. But that turns out not to be enough and you're not able to finish your project or not able to put it together the way you intend to, or you just don't have the insurance or other things that really make it much more risky for your investors. And this is where we try to help you as much as possible. Your investors are going to choose to give you money to make this film if they if they want the story told and they believe you're the right filmmaker to tell that story, that's your job. Our job is to make sure that when they take the budget, when they take the investment documents, when they take all of that back, review it with their own lawyer and accountant, etc., they can see that everything is there. I think a mistake we see a lot is people trying to sell it to investors for a lot less than it would actually cost to look, oh, you're not going to have to invest that much. We'll be able to make this. But then as we talked about on the back end and there's legal problems and they have to hire legal counsel, which costs more money, or they got this great song that they need and it fits perfectly with a scene. And now they have to pay so much money to get a license. And all these investors aren't even getting the things that they invested in because you can't make it or you don't have enough money to make it. They would a lot they would way more want to see a realistic budget at the front end had everything on it They'll be more likely to invest in it. That's absolutely true and it seems counterintuitive, but it's really more showing your professionalism. Right. And you get in the habit of doing that as part of your process every time. And you may have a small budget, you may have a larger budget, you may have a really big budget. The point is, whatever it costs is what it costs. And don't forget those other features. There's a couple of other things I think that are key to note, but that really the budgeting and the clearance process, those things really do go together and the production legal percentage of the budget is a very real part of that. And we work with you to sort of figure out based on the size of your budget, our fees might be one and a half percent or 10% depending on what it is. But whatever it is, we’ll - you'll know ahead of time and you can include that in there. And when your investors ask what this is, you can explain, “Well, we need lawyers to watch every second of footage. We need lawyers to make sure we have all the contracts. We need lawyers to make sure this film can see the light of day so that we can eventually pay you back if it's successful.” Right. And the reason we do percentage are the budget, first of all, standard industry to do that because we all, what Pete likes to say, which I always love. If you think to yourself, should I call a lawyer? You already know the answer. You should. But a lot of times people fear calling a lawyer because they don't want the meter to start running. So we know in this industry it's very candid. You need to talk a lot. You need to be able to pick up the phone and not have to worry about that. So when we set it upfront, as a percentage of the budget, you can call as much as you want, things can pop up and we're there to help without you having to worry “Is the meter running?” That's exactly right. That's exactly right. We end up essentially because I mean, we're we're sort of like that editor or that producer. We're in the line item in the budget. We are also working for the project. We are part of the team that helps make sure the project can see the light of day. So don't be afraid of your lawyers. Check us out on the podcast. We’re not that scary. We really aren’t, and hopefully you've gotten something out of this. You know, I want to sort of wind this up here by reminding people that there are terrific resources. You can find a lot of content that hopefully you'll find helpful at TheScreenLawyer.com, our podcast here, we regularly talk about legal issues as they relate to the industry, along with having guests who are in the industry, which is really fun. But then there's, you know, Cinema St Louis, that's a fantastic organization the St Louis Filmmakers Showcase. We are so proud to be a sponsor and part of that we're looking forward to the Saint Louis International Film Festival in November. We'll also do a masterclass at that time. That one tends to be in the fall. We tend to focus more on deep diving into the financing side of the film work. So if that's interesting to you, check that out. But you can go to Cinema Saint Louis and find all of that information there- great resource. And lastly, we had a chance again to present just recently and then go to the closing night party, which was so cool to see all the winners and you know, and the true sort of Oscar fan, your best actor and then come down and then it was so much fun in the theater nonetheless. Yeah, it was fantastic. And it's just a reminder of what an incredible community of creative people exists around the filmmaking world and watching individual groups cheer on the other winners. We're so excited for the success. It's infectious and we're really happy to be part of it. So hopefully you'll come check us out in the future. If you like this podcast, find us, follow us wherever you get your podcasts on audio and if you're watching on YouTube, continue to hit that like button, hit that subscribe button. We're constantly putting out new content here and hopefully you'll come back and check us out anytime you like. Thanks for joining. Yeah, thanks,Kara, that was fun. Yeah. Will you come back? I definitely will. Alright, watch for us next time. Take care.