Frequently Asked Questions: Producing

Answers from Mark Litwak, Attorney At Law



DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.



Question: I am writing a paper on producing a film for my entertainment and sports law class. I was hoping that you would give some pointers on how I may go about this. What does producing involve? Any information on financing, distribution, royalties, licensing, advertising—any help would greatly be appreciated.



Answer: There are mountains of information on all these topics. A recent book that has been published by Silman-James Press is called Movie Money. The book discusses creative accounting.



Question: What is the procedure for obtaining permission to produce a motion picture based on a novel that is currently out of print and the author is deceased?



Answer: It doesn't matter whether an author is dead or a book is out of print. You need to determine if the book is copyrighted or in the public domain. If copyrighted, you need to locate the owner(s) and license the rights to adapt it. If it is in the public domain, you don't need anyone's permission.



Question: My partner and I have been at the negotiation table trying to form a joint venture with a pop music group that also has their own production company. To the table we bring our product (13 episodes for the first season of our show), and they bring their connections and exposure to set up meetings with companies that we want to sell the show too.



What we are trying to do is sell the series to a brand name corporation, so they may use it as a form of indirect advertising (this deal would be in Malaysia) and the pop music groups production company would get to produce the series. As it stands, I've offered them 50-50 split of the profit sharing (before production costs) and the rights would stay with the creators. They want 50-50 profit sharing after production costs have been covered and they want joint rights. I think their requests are unreasonable, being that all we are asking from them is to set up meetings ... we've already created and developed the show.



Could you please help me to understand where the rights lie and if you were in my shoes what kind of other items would you make sure were covered within the contract.



Answer: It is not clear from the question whether you have produced, or intend to produce, 13 episodes, and whether the territory for the deal is Malaysia or a broader market. If you are just licensing a concept, then the other party is going to incur all the production costs. In this situation, joint rights and a fifty-fifty profit sharing is reasonable. On the other hand, if you are producing the show and simply licensing it to them for broadcast in Malaysia, you should just give them distribution rights for Malaysia. You would not give them a piece of the copyright of the underlying show. Typically in licensing deals for the smaller territories like Malaysia, the licensee pays a flat fee in return for the right to broadcast a show a certain number of times within a designated time period.



Question: If an assistant to a producer develops a project that gets green lit and turned into a motion picture and television show (including merchandising and ancillary markets), is there a standard and customary percentage (gross or of the producer's fees) that should be negotiated for this individual as well as a credit? Or is there no legal binder to any obligation? Thank you.



Answer: An assistant to a producer is probably an employee, and other than whatever salary the employee is entitled to, he would not have any interest in projects developed for the producer. Of course, if your agreement with the producer promises otherwise, then you need to look to those terms. As for a producer credit, that could range from anything that is merely honorary to a credit that represents what you actually did on the production. Notwithstanding all of the forgoing, if your job working for the producer does not involve developing projects, (i.e., this project was outside the scope of your employment), then you should be treated no differently than any outsider who has submitted a project to this producer. Any source