These days, everyone is trying to save money. Since lawyers are generally expensive to retain, some people think that with the use of a few forms they buy or find online they can create their own legal documentation. Saving money this way is good, right? After all, aren't lawyers just greedy leeches who will be sitting in Hades right alongside Satan in the great beyond?
Eh, no comment. Lawyer jokes aside, they do serve important purposes especially in the entertainment business. I don't say this because I happen to be a lawyer. I say this because I have witnessed and know of real life situations where not having a lawyer around to review documentation or make sure all the I's were dotted and the T's were crossed led to serious problems. Here are 4 bad things that could happen if you think having a lawyer is a frivolous luxury:
1. Ownership Fights: Countless stories abound in the business of how someone's idea or life story was stolen by some major studio. Usually, there was a lawsuit and the person claiming infringement lost because there was no documentation of the claim or the other side had far more money.
Recently, a client of mine was working with a producer who wanted this individual to submit creative works but did not want to compose a writing listing the ownership interests and rights of each party with respect to that work. The first thing you'll hear a lawyer say about any situation (entertainment related or not) is “Get it in writing.” This can't be emphasized enough. Just like with releases, both parties need this arrangement in writing.
If you don't get the writing, what would happen if you become successful? If you are the person creating the work, you could have a producer attempt to hold your work hostage if you want to move on or cheat you out of revenue. If you are a producer, you could have a writer/creator of work who decides to demand more revenue and gets an injunction to keep you from performing his/her work for profit. Basically, you end up with a fight over money and if you think the average person will be rational or fair when it comes to large sums of money or the potential for lots of money, then I've got a bridge in Brooklyn to sell you.
Save yourself the litigation costs, arbitration fees, lost revenue, and other expenses by getting a writing in advance stating just what the ownership interests and rights of each party are. The client wisely chose not to take a stranger's word for it.
2. Embarrassing Situations: Another fun scenario is when an actor is dissatisfied with the final product of a film or television show. I recall one story where an actor was furious about a portrayal in a film. The contract required the actor to approve of scenes and publicity materials but that actor was never given an opportunity to approve or reject any publicity materials, including trailers, posters and so forth.
This contract was also silent on what to do if there were problems or this particular provision was breached.
The actor was so horrified at being part of this project that the individual refused to participate in any type of promotional efforts in the film and asked to be taken off the credits. This particular actor was a lead with a significant reputation in the business.
As a result, the producer lost a lot of revenue as well as a desired demographic in promoting the film. It also looked suspicious when people asked the producer why this actor was not at any of the screenings, was not credited on IMDB and would never answer questions about the film.
Sometimes, silence can be your worst enemy especially in a courtroom setting, where judges tend to rule in favor of the less knowledgeable party in the world of contracts. That means if you're a business doing this, you are sabotaging yourself by not getting legal counsel.
3. Refusals to Perform: What if you run into a performer represented by a company that fancies itself as a garage mechanic when it comes to committing talent's performance? Or simply a wayward unrepresented actor who gets full of him/herself and tries to extort more money or rights in order to continue in a role?
Enough salary holdout confrontations happen when a television show gets popular and there are written contracts stating what the actor is supposed to make, the actors merchandising rights, etc.
Could you imagine the types of problems you'd have if you didn't have a writing and merely had oral promises? You could end up having to recast a major role in a popular show, web series, film sequel, etc. and never recover.
4. No Procedures for Solving Problems: The average person never thinks there will be problems in a business relationship. Attorneys, on the other hand, are trained to expect it. We have to plan contracts for worst case scenarios. Some contracts even plan for what to do if aliens land on the Earth during production and the United States is in a state of war. You might never actually have the bad things happen but a good lawyer makes certain there is a procedure in place to cover those situations.
We like arbitration/mediation provisions, written notice and other steps less drastic than instant lawsuits or injunctions. So should you. They are cheaper and it's much easier to plan for the worst case scenario when it hasn't happened and everyone is getting along than when tempers are flaring and no one is behaving like a grown up. It will also stop hot heads from running straight to the courthouse to initiate costly litigation against you.
All of these incidents are true and have happened many times in the history of litigation and the entertainment business. One of the biggest mistakes you can make is thinking you will be an exception and do not need to get a lawyer. If you hope to make money in the entertainment business, you have to remember the “business” part of that equation; you have to mind your own interests and part of doing that is hiring a lawyer that will make sure some preventable legal crisis doesn't happen to you.
- Monica
Contact Monica for legal representation/advice at Monica@1wayoranother.net
Follow Monica's personal blog HERE.
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(Monica C. Trombley is the legal administrator/project manager at her company One Way or Another Productions. She is a licensed attorney in both NY and CT.)
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