10 Legal Basics for Producing a Feature Film Or Documentary
If you are producing a feature film or documentary, there are some legal basics you need to know to protect your film, raise funds, and get releases from those who appear in the film, are part of the crew, or provide you with music or graphics. You may also need insurance.
This article is meant to be a general overview of the different legal documents you need. For specific guidance, see an attorney who is versed in entertainment and contracts law.
1) Obtain a copyright for your film and possibly the script. If you are doing a feature film, you can separately copyright your script before production. If the script changes during production, you can send in the revision, or if the film is sufficiently different, copyright the revision as a new script.
It’s easy to register online. Just go to the U.S. Copyright Office (www.copright.gov) and register your script as one of the performing arts. You ‘ll see more details on what to do here: www.copyright.gov/registration/performing-arts/index.html. Register your film in the motion picture category www.copyright.gov/registration/motion-pictures/index.html. To start the process, go to the registration portal www.copyright.gov/registration and follow the prompts. After you enter your information, you’ll be taken to a portal to pay and then will be returned to the registration page so you can upload the file for your script or film. It’s more efficient to handle the process online, where the cost is $35 for a single rights holder; $55 for multiple right holders, whereas the cost is $85 for a paper filing.
You can also register your script with the WGA West (Writers Guild of America West — www.wga.org, based in Los Angeles. The cost is $20 for non-members; $10 for members. As the WGA states, registering your work with the WGAW Registry documents the claim of authorship of a written work and does not take the place of registering with the U.S. Copyright Office, which documents the ownership or rights in this material.
2) Set up a separate company for your production. Minimally, set up a DBA (doing business as) with the fictitious name you are using for the project, so you can separate any expenses and income for the film from your other expenses and income. You may also need this DBA when it comes time to seek a distribution deal, since a distributor will commonly ask for your business name, and some may want a written document showing your filing. You can get a DBA form from your county clerk/recorder office, and you can file for multiple names at the same time.
For example, when I created a DBA for Changemakers Productions, it was one of three names I filed for at the same time on a form called a “Fictitious Business Name Statement.” Then, I was asked to specify if the business was created by an individual, married couple, general partnership, co-partner, joint venture, limited partnership, a corporation, a trust, a limited liability partnership, a limited liability company, and a few other classifications.
You can do file as an individual or married couple without creating any other kind of legal document, but for the other arrangements, you need to set up a separate legal identity. You can do this by yourself if you know how to do it or have a guide to follow, such as a Nolo Press book. Or hire a lawyer to set this up for you. There are some legal services online, such as LegalZoom, or find a lawyer in your area to do this.
A common legal structure for many films is the LLC or limited liability corporation, which is popular, since the owners are not personally responsible for the company’s debts.
The filing fees for a fictitious name will vary depending on where and when you do this. When I filed at the County Clerk — Recorder’s Office in Martinez for Contra Costa County in January 2018, the cost was $30 for the first business name, $7 for each additional name on the same statement and doing business at the same location, and $7 for each additional owner. After you file the document, the DBA is good for a certain time period, in my case for 5 years. However, after you file, you additionally have to print a notice of your filing in a paper that publishes legal records within a certain time period. Sometimes there will be a paper that is dedicated to publishing their filings and may even have a nearby office, such as when I filed for fictitious names in Oakland. Or now you may be able to provide this information to a paper online, which is what I did when I filed in Martinez in Contra Costa County.
3) Consider getting insurance. You will usually need E&O or errors and omissions insurance when you find a distributor. This insurance protects your company from any errors and/or omissions you or others working on the project make, and it covers judgments, attorney fees, court costs, and settlements up to the limits of the policy. It is designed to cover negligence if you have a civil claim against you or your company and is typically set up after the film is completed.
You might also consider getting a general insurance policy which covers any kind of bodily injury, property damage, or personal injury claim that occurs during filming. Having such insurance is generally recommended in case anyone gets hurt or there is substantial damage to the site where you are filming. In fact, some locations will require that you have insurance in order to shoot there. The costs can range from about $500–2500 a year, though you might get a monthly rate to cover the actual filming.
To keep costs down, we didn’t get a general insurance policy for our past films and were fortunate, since most of our filming was indoors or in local parks. Also, we had no property damage and no one got seriously injured, apart from a few scrapes and bruises. But you don’t know, so having insurance coverage might be a good idea, unless this is a DBA project where you are in charge and any damages are covered by your personal insurance.
Still another type of insurance to consider, unless covered by your insurance or that of the crew members with their own equipment, is property insurance, in case any equipment gets damaged or stolen. We didn’t have separate film insurance for property or equipment loss, which was covered by the individual property owners, and we were lucky to have no claims. But you never know.
Thus, go over with a local insurance agent or broker what you are planning to do, and see what your agent recommends for any coverage.
4) If you are working with a partner, team, or co-production company, you need an agreement in which you establish who will do what, any financial contribution made by the participants, and how you will share any returns.
For example, if you are providing the script and the funds, the agreement should specify that, along with the credit you will receive and how much you will receive when the film starts making money. That’s the kind of agreement I entered into as the writer and executive producer on 10 films in a co-production agreement, which specifies how much I am providing for the budget in return for the directors/producers handling the actual production. Additionally, the agreement specifies that I will get the first moneys out, and thereafter they will receive 30% of the picture’s profits, and I will receive 70%. On later films when I obtained funding from other investors, any returns were divided into the producers’ share of 50%, where they receive 30% and I receive 20%, and the investor’s share of 50%, with a split based on the investor’s contribution to the film. For instance, if an investor contributed $10,000 of a $50,000 budget, that would be regarded as a 20% share of the investors’ half of the film or 10% of the total film.
In writing up an agreement, you want to spell out the details of who is getting what, along with a timeline of when certain funds are due. Generally, you need the first funds about two or three months before any filming occurs, since you need some funds to start the preproduction process — generally about half of the full budget — to cover the cost of renting equipment for filming and lodging for crew members, airfare, car rentals, food, and the like. All of these expenses should be worked out in a schedule and budget that the film directors and producers can provide to indicate how much funding needs to be in place before and during the filming and then must be paid in advance for post-production editing.
In addition, include in this agreement a statement that whoever is providing the funding recognizes that “financing a PICTURE is a risk with no guaranteed financial return,” so the funder assumes the risk without recourse. Include a statement indicating the state where the agreement is governed and conclude the agreement with a statement that this is the final understanding, such as, “This agreement expresses the entire understanding of (the named parties) to this point and replaces any and all former agreements, negotiations or understandings, written or oral, relating to the production of the PICTURE. This agreement may be executed by means of facsimile or original copies, and may be executive in two or more counterparts, each of which shall constitute an original but when taken together shall constitute one agreement.” In other words, preferably get everyone to sign a single document, but if there are a number of parties to the agreement, individuals can sign separate documents and they can be combined together.
5) You additionally need agreements with anyone who is acting in the film. If the actor is not a member of SAG, a simple agreement with the actor to be in the film is fine. This agreement should specify that the named actor is participating in the named picture and rendering Acting Services for approximately a certain number of days as indicated. Specify the role the actor will play and the rights the actor is granting which include the “exclusive, irrevocable rights to reproduce, modify, and distribute both audio and video recordings of the actor for use in the picture and any other sequels, remakes, derivations or advertisements of the picture whether in audio, video or still images, and this use can include the actor’s image, voice, and performance.” Also, specify the compensation for the actor which will be “the complete and total compensation for the actor’s services.”
Indicate, too, that the acting services will be according to the direction of the Executive Producer or director, and may include but not be limited to acting in the actor’s role, rehearsing, table reading retaking, and promotional and video recordings. Indicate that the actor has to be on the filing location and ready to film in a timely manner and shall be credited under the specified name as the named role. Further, include a waiver of liability, where the actor assumes the risks and agrees to hold harmless the Executive Producer, the managers and owners of all locations and equipment involved, the cast and crew of the picture, and all other participants in the production.
Some additional clauses provide that the agreement can be assigned by the actor to successors, assignees, licensees, and grantees and by the Executive Producer to another party. Include a clause about under what conditions the agreement might be terminated, the potential for modifying the agreement with a signed and written agreement by the Executive Producer and actor. Indicate the state having jurisdiction for the agreement and indicate that the agreement might be transferred to the designee of the Executive Producer, if the Executive Producer can no longer function as the Executive Producer. Finally, include a clause that this is the entire agreement and that it can be executed by facsimile or original copies and can be executed in two or more counterparts.
6) If a person is participating in a documentary as an interviewee or expert, you need a release form agreeing to be in the film, and if there is no compensation, include this in the agreement. Indicate that the agreement is between the named participant and the named producer of the named video, or any name it is changed to. The interviewee or expert should agree to be recorded for the purpose of the video or any variation, adaptation, or spin off, and understands there will be no compensation for this participation.
The agreement should also specify that the participant grants the producer all rights to the recording, which include but are not limited to the right to reproduce, modify, edit, distribute, assign, and license the recording, and this includes the right to use the participant’s image, voice, performance, and name if the participant wishes to be credited. The participant should indicate that the credit be under the specified name, or if this line is left blank, the participants won’t be credited.
Finally, add in a phrase that the agreement may be modified by a signed agreement between the producer and participant. Indicate the state governing the agreement, and conclude by stating that “this agreement expresses the entire understanding of the participant and the producer and replaces and any all former agreements or understanding.” Then the participant and producer sign, and if the participant is a minor, a parent has to sign.
7) If you are using original music in a film, you need an agreement providing you full rights to use the music for how much and how the person creating or providing the music wants to be credited. You can use the agreement for the actor as a guide for what to include about the grant of rights.
8) If you are using stock video or images in a film, you need the necessary releases for using them. Typically, the uses will be spelled out on the platform where you are obtaining these videos or images, such as istock.com, adobestock.com, shutterstock.com, 123rf.com, and dreamstime.com. Many companies make no distinction between using the image or video in a film or print medium, though some may require an extended or commercial use license for a film — typically about $79–99. Check with the requirements on the platform you use for stock videos or images.
9) You will also need agreements for any properties you rent for filming or for the production crew’s lodgings, as well as for any rental cars. When you are using the location for production, make it clear to the owner how you intend to use it, because you want to be sure the owner agrees. Usually, if you are just setting up simple interviews, owners will readily agree, though if you are doing a feature film, explain what type of action you expect to occur there, since owners will have some concerns about the potential for property damage if a large number of people are in a room for a scene or if you are filming an action scene. Thus, you want to reassure the owner of a location that you will cover any damages and include that assurance in the agreement.
In my experience, I have found that some owners are enthusiastic about having their location in a film and have even provided special lower rates for renting the place. But others have not wanted to rent their property for filming or have added extra costs. So be prepared to explain or negotiate these understandings about if and how you can film, so you don’t find the police suddenly arrive to shut down the production in the middle of filming, because you haven’t explained and gotten permission to use the location for this purpose.
10) If you are bringing in an outside editor, write up an agreement of what the editor will do for how much based on an hourly or project basis.
Finally, check if there are any other legal requirements that might occur for your film, based on the nature of your film and where you are filming. If so, fill out the necessary documents before you begin filming during the preproduction filming process.
Once all of your legal requirements are in place or planned for prior to filming, you are ready to go. Later, after you complete the film, there will be still other legalities to consider when you submit or enter into an agreement with a distributor. I’ll cover that in another article.
GINI GRAHAM SCOTT, Ph.D., J.D., is a nationally known writer, consultant, speaker, and seminar leader, specializing in business and work relationships, professional and personal development, social trends, and popular culture. She has published 50 books with major publishers. She has worked with dozens of clients on memoirs, self-help, popular business books, and film scripts. Writing samples are at www.changemakerspublishingandwriting.com.
She is the founder of Changemakers Publishing, featuring books on work, business, psychology, social trends, and self-help. The company has published over 150 print, e-books, and audiobooks. She has licensed several dozen books for foreign sales, including the UK, Russia, Korea, Spain, and Japan.
She has received national media exposure for her books, including appearances on Good Morning America, Oprah, and CNN. She has been the producer and host of a talk show series, Changemakers, featuring interviews on social trends.
Scott is active in a number of community and business groups, including the Lafayette, Pleasant Hill, and Walnut Creek Chambers of Commerce. She is a graduate of the prestigious Leadership Contra Costa program. She does workshops and seminars on the topics of her books.
She is also the writer and executive producer of 10 films in distribution, release, or production. Her most recent films that have been released include Driver, The New Age of Aging, and Infidelity.
She received her Ph.D. from the University of California, Berkeley, and her J.D. from the University of San Francisco Law School. She has received five MAs at Cal State University, East Bay, most recently in Communication.