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Production
Pre-Production: Contracts, Contracts, and Contracts

November 7, 2016

• Stacey Davis

We’ve entered pre-production – what a glorious time in the life of a film.  During this stage, the production company’s legal counsel puts pen to paper to create the myriad of legal contracts the production company needs to ensure it has rights in all of the various elements of the film and that it is protected from unforeseen occurrences during principal photography. The most common of these contracts are employment agreements, location releases and insurance contracts.

 

Employment Agreements

 

Any person who assists with the production of the film, cast or crew, paid or unpaid, should sign some form of release agreement with the production company.  Many times these agreements take on the form of an employment contract with provisions relating to the services to be provided, compensation and billing credit.  In its most basic form, however, these agreements should include work made for hire language (coupled with an assignment) ensuring that the actor’s performance or director’s work product belongs exclusively to the production company.

 

Among the agreements that a production company should have in its basket of contracts are the following:

 

Performer Agreements – For principal performers, these contacts include the offer letter, deal memo, long-form agreement and/or the loan-out agreement (when a performer is using a loan-out company).  For minor players, you’ll need a day player agreement, extra’s agreement and crowd release language.  

 

Crew Agreements – Whether working above-the-line, below-the-line or as an unpaid intern, each crew member should sign an agreement with the production company prior to the cameras rolling.  Sometimes these agreements are specifically negotiated and include detailed terms relating to the services to be provided, fixed and contingent compensation, kit fees and billing credit.  Other times a simple fill in the blank form crew agreement will suffice.  

 

Location Releases

 

As they say, “location location location.” When filming a movie, choosing the right location is essential.  But once that location is chosen, the production company must ensure that it has the right to shoot on the property.  When filming on private property, a location release is an absolute must.

 

Be warned, this is one area where you don’t want to pull a sample agreement off-line.  Many online agreements have been negotiated from the property owner’s perspective which is understandably different from that of the production company.  To avoid omitting any necessary protections (e.g., like an assignment clause), make sure you are using a well-drafted agreement.

 

A comprehensive location release should outline the terms for how and when you can use the property (such as shooting dates and times of access), details on what changes or alterations can be made to the property and provisions relating to representations and warranties, release of claims, insurance and indemnity. One of the primary purposes of a location release for a production company is to secure the property owner’s release of claims (such as trespass) relating to your use of the property.  

 

Insurance

 

The film and television industry boasts numerous insurance options for just about every conceivable contingency.  Some, like general liability insurance, are a must have, others are dependent upon your particular circumstances.  From equipment floaters to adverse weather conditions, there are insurance coverage options for every type of production (big or micro, doc or narrative, short or feature).

 

General Liability (Film Production) Insurance - General liability insurance protects the production company in all aspects of film production, including claims of property damage.  If you plan to shoot on location, property owners (both private and municipal/governmental) will require you to obtain general liability coverage.  General liability insurance also protects against claims of bodily injury that can arise as a result of your filming activities.

 

Equipment Floater - If you own equipment and plan to move it from location to location, you may consider an equipment rider to protect against damage, loss or theft.  In addition, if you plan to rent equipment for use during filming, the owner of the equipment may require that you provide insurance to cover the equipment during your term of use.

 

Worker’s Compensation - Like most businesses with employees, worker’s compensation is a necessity (as dictated by state law).  Workers comp provides replacement income and covers the medical expenses of the cast and crew (employees) who are injured on the job. There are several payroll assistance companies who provide this type of insurance for the film’s employees (as technically they are employees of the payroll company).

 

Negative/Video Film Insurance - As the name implies, negative film insurance insures the production company against any loss, damage or destruction that may occur to the film negative or video during shooting.  Coverage examples include loss or destruction of the film during transportation.  This insurance covers the cost of the reshooting.  Sometimes loss or destruction of a negative due to a camera malfunction or faulty stock is included in this coverage; other times, such coverage is only provided through a separate faulty stock and processing rider that is combined with the negative and videotape coverage.

 

Stay tuned for my next blog post where we will dig into each of these types of contracts with some negotiating dos and don’ts.

____________________________________________________________________

Stacey spoke more on pre-production contracts during our #FilmCurious Twitter chat on 11/8. View the archived chat here.

 

The materials contained in this post are general in nature, were prepared for informational purposes only and should not be considered legal advice. It is always wise to consult with a qualified attorney for your own specific legal issues.  Transmission of this information is not intended to create and does not create an attorney-client relationship.

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Stacey Davis

Stacey Davis is the owner of The Law Firm of Stacey A. Davis, LLC, an entertainment and intellectual property boutique firm, specializing in film, television, music and book publishing.  For more information on the Firm’s services, please visit staceydavislaw.com. You can follow Stacey on Facebook (/staceydavislaw), Twitter (@staceydavislaw) and LinkedIn. You can also reach Stacey at sdavis@staceydavislaw.com and you can find her inside the Seed & Spark Filmmaker Box.


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