SELF DEFENSE CHECKLIST
by Mark Litwak, Entertainment Law Resources
1. GET ALL PROMISES IN WRITING. Don't ever accept oral assurances from a producer or studio executive. If they promise to spend $50,000 in advertising, get it in writing. If there is not enough time to draft a long-form contract, obtain a letter reiterating their promises.
2. REGISTER ALL WORKS WITH THE WRITER'S GUILD. Before you pitch a story, register the work with the Writer's Guild. Non-members may register. Alternatively, register your work with the Copyright Office.
3. OBTAIN AN ARBITRATION CLAUSE. Make sure all contractual disputes are subject to binding arbitration with the prevailing party entitled to reimbursement of legal fees and costs.
4. WATER DOWN THE WARRANTIES. Make the warranties to the best of your knowledge and belief, rather than absolute. With an absolute warranty, if you make a good faith mistake and defame another, you may be liable for damages.
5. RETAIN POSSESSION OF YOUR NEGATIVE. Give the distributor a lab access letter rather than your original negative. If they breach your contract, you can cut off their access to the negative. Try to retain your original still photos and any artwork.
6. GET ADDED TO THE E & O POLICY. Have yourself added as a named insured to the Errors and Omissions Insurance policy. If you are on the policy, the insurance company will pay for your defense and damages that may arise from liability if you inadvertently defame someone or infringe their copyright.
7. CHECK REFERENCES. The best contract in the world can only protect you so much against a scoundrel. Thoroughly check out any party you contemplate doing business with. For distributors call other filmmakers who have worked with them. People who have lousy reputations have earned them.
8. TERMINATION CLAUSE. If the other party defaults you should have the right to terminate the contract and regain all rights to your film in addition to monetary damages. Writers should insist on a reversion clause so if a script is bought and not produced within five years, all rights revert to the writer.
9. INVESTOR MONEY. Never make any "offers" to investors or accept any investor money without fully complying with all applicable state and federal security laws. Have an entertainment attorney with experience in securities prepare the paperwork for you.
10. SAVE COPIES. Retain copies of all correspondence, contracts and every draft of your screenplay. When you make a story contribution or make an oral agreement, follow up with a letter reiterating the terms of your agreement.
11. MISCELLANEOUS. Delivery schedules, reversion of advertising materials, territory minimums, separate bank accounts and limitations of remedies. Obtain an experienced advisor to assist you on these and other points.
For more tips from Mark Litwak, go to www.MarkLitwak.com
|