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What kind of help do you need from lawyers?

Hi All!

I've recently decided to become a self-employed media lawyer (having worked full-time as a media lawyer before :)). www.linkedin.com/in/silviaschmidt/...

To help me help producers, I'd be really grateful for your thoughts: are there any questions that you as filmmakers have? Or any problems that keep coming up on an ongoing basis? Any big stumbling blocks?

I'm also making my own docs, so I know how difficult it is to be across the creative and the legal side!

Best wishes
Silvia

  • If you wanted to do something name building NOW, it might be worth looking at insurance contracts and assessing where a production would stand in law if their star/director couldn't arrive on the expected date due to flight suspension and quarentine issues. So productions delayed, maybe cancelled.

    Is CV (and all that follows), an uninsured "Act of God", or would a claim for full consequential loss succeed?

    The lawyer who writes the paper now is the one whose name comes up in Google when the disputes start, and wins the business :-)

    5 months ago
    • Oh that's a great idea! Yes, usually the insurance should cover those things, but of course quarantine might constitute an exception under the relevant insurance policy. Great thought, thank you!

      5 months ago
    • @Silvia Schmidt
      Some insurers we use for media placement are placing Coronavirus exclusions on the policy schedules at the moment. Marlom, most of these would be covered under a production indemnity policy, however thorough review of the policy wording/schedules is best practice.

      5 months ago
    • @Kris Barnfather Oh that's interesting! I've previously worked with an insurance advisor (www.linkedin.com/in/barry-philp-4a060625...) - he's been great at analysing the insurance policy that's been offered and negotiating with the insurers to ensure that the film is properly insured, etc.!

      5 months ago
    • @Silvia Schmidt Always a wise thing to do, as you know good advice is golden.

      5 months ago
  • Well you did ask Silvia ! That's a proverbial sixty four thousand dollar question with a pandora's box of answers.

    An ideal lawyer would of course need to be learned, competent and know when and how to challenge presumption, even when a presumption is asserted by an entity of perceived seniority or grandeur; perhaps especially so.

    A lot of what a lawyer does is to provide practical working alignments between people and their aspirations, through applying and refitting contractual structures that have already been well developed by conventions, practice and precedents.

    An example of good advocacy is the ability to resolve some of the more existential conundrums such as original thought, intellectual property and what constitutes reasonableness and unreasonableness in Law. Conundrums best informed by reference to constitutional and Common Law principles rather more than by uncritical acceptance of statutory legislation. It does require special effort. Lawyers able to function beyond the glass ceiling of statutory presumption are absolute treasures.

    In my somewhat lacking humility and strident opinion, a good lawyer ought to have the sort of fundamental knowledge and understanding of constitutional principles that all and any statute legislation ultimately must comply with if it's to be effective within a specific context, let alone actually lawful.

    It's been my experience that the actual constitutional arrangements that exist in English and Scottish Law have not been properly taught in our law schools resulting in a widely held misguided belief that ordinary Statutes can and have lawfully overcome our Constitutional Instruments and Common Law. The true significance of the two Miller v Government cases in the Supreme Court have yet be fully understood by many because those judgements challenge the notion of Parliaments constitutional supremacy and those lawyers who believe that we don't have a true separation of powers.

    "The Crown is as much Sovereign in the Courts as it is in Parliament"

    So much of what has been allowed
    through the lack of learned and competent challenge has or ought, in the Supreme Court's good time, be found to be unlawful, provided Johnson's government is defeated in its brazen attempt to usurp the sovereignty of Her Majesty's Courts.

    It's been clear to me, after winning some 60 times in over 70 cases since 1974, without my having any certified qualifications or formal training, and more often than not against lawyers, sometimes teams of them, in just about every kind of venue below the Supreme Court, that common sense in Common Law can be more empowering than many an astonished lawyer relying upon convoluted technicalities had expected.

    Point being that any issue, whether it be contracts or dealing with forceful challenges, particularly from statutory authorities, requires creative constitutional thinking and freedom from the sort of dogmas that can entrench matters and people in unwanted quagmires.

    That's the experience and observation that I'd contribute to any general question about law and how it ought to apply to people's affairs, whether in terms of media or any other facet of being alive.

    Wishing you a happy, successful and liberating practice Silvia

    5 months ago
    • Dear John

      Many thanks for your useful thoughts and wise insights.

      May I ask, have you ever come across any legal issues on a media project / production?

      Best wishes
      Silvia

      5 months ago
    • @Silvia Schmidt many times Silvia. Mostly regarding IP issues, taxes, VAT and employment law as it concerns HMRC and their notions of what constitutes self employment.

      Because I've not solely produced anything with a budget of more than six figures and only been a principal part of three seven figure dramatic features, of which only one has actually been produced so far, I've not had to draw up contracts for them, I've been able to knock up contractual agreements relatively easily for the numerous commercial, factual and documentary projects we've done.

      5 months ago
  • Hi Silvia,

    What an interesting proposition. I've been thinking about it a bit.

    I think from SP members viewpoint, some super simple outline deal sheets might be a good resource for the community - perhaps someone from SP itself might comment?

    From a personal viewpoint, well I have a feature coming up, non-union shoot, so there will need to be a bit of legal work... PM me if you'd like to chat about what we can do on that side of things :)

    5 months ago
    • That's a great idea! I'll have a think about what might be possible.

      5 months ago
    • @Silvia Schmidt
      Hi Silvia, thank you so much for your input! If you do happen to have or would like to share some resources with the SP community, it would indeed be brilliant to incorporate these into the Resources page. Feel free to email me at dorothy@shootingpeople.org

      5 months ago
  • Hiya,

    one thing actually I never really quite get is exactly what is the legal suggestion when someone is late on their payments/not paying you a month after invoice has been sent?

    5 months ago
    • It's annoying but a fact of life. 30 days is standard when dealing with companies and councils of any size.

      I was always told that no matter what the contractual terms might say, the courts expect the debt to be at least 90 days old before you involve them. Large companies are famous for paying on day 90. Their suppliers just know to factor it in.

      5 months ago
    • There's a biiig company I brushed against who automatically discount your invoice by a few percent in exchange for paying it on time. How shitty is that?!

      5 months ago
  • Preparing contracts for distribution, and preparing the film and it's pre-sell state for distribution contracts.

    Also, there's a legal term, whereby a distributor takes on all the obligations of the production company. Like if a contract states that a player gets residuals, then the distributor will be responsible for paying out the residuals.

    Basically, distribution tips would be really helpful. Also, any fundraising / financing advice, to ensure that everything is legal and investors are properly informed about what they are getting into.

    5 months ago
    • That's really interesting - thank you for your thoughts. Sometimes the royalties are also administered by Freeway or Fintage - in my experience having a collection agent really helps, as they make it all very transparent.

      Do you always start with term sheets, just setting out the commercial terms, when you're negotiating funders? Think that really helps as that gets rid of confusing legalise at the beginning stages of the negotiation.

      4 months ago
  • HI All, some of you messaged and asked about how to "get out of a contract" in times of corona - I recently wrote a blog article on Raindance about it and am sharing it here, in case it might be useful to more people! www.raindance.org/corona-what-will-happe...

    2 months ago
  • Hi Silvia and community!!
    Thank you for being!! So I’m an emerging filmmaker and all around creative and have a few questions . Can I film/use content that is on the tv without legal issues? Or must I give credit which I love to do and don’t have a problem with. Do the rules of photography apply? I do a lot of that. As an independent filmmaker what legal advice would you give me regarding collaboration, contracts, and distribution as well as protecting my intellectual property whilst also seeking be marketable?

    I’m self taught and teaching currently ( and doing quite well! But so much to learn). I don’t mind the trial , error and fuckups Ill surely make that I’ll learn from, I just wanna avoid legal problems,on the biz end- so I really appreciate any wisdom, Encouragement and guidance from all, including the industry veterans, and more experienced community. I love you guys!! Stay safe , stay home, stay creative!!!

    2 months ago
  • Hi Fatima

    Thanks for your comment! As a general rule you should always first get written permission from the rights-holder before you use their materials (there are certain exceptions but I would work with the assumption that you first need permission before you use something that's been on TV). The other piece of advice would be to always have a contract and not to rely on any oral or "implied" agreements - much better to put it on paper, even if it's just a short contract that sets out (a) who does what when and (b) who gets what in terms of money / credits.

    Feel free to get in touch if you have more detailed questions, I offer a free initial consultation www.silviaschmidtlaw.com/contact

    Hope that helps!

    Best wishes
    Silvia

    2 months ago
    • Hi Silvia,
      Thanks for the advice, but maybe I wasn’t specific enough with my questions as you told me what I already knew, but it was greatly appreciated but honestly I was somewhat disappointed. So I went looking, and found my answers. For anyone else following this discussion that may have similar or different questions regarding fair use, copyright, intellectual property and the legalities involved in specific situations, regarding filmmaking and does not have access to or can afford a lawyer, I recommend CMSI.org. CENTER FOR MEDIA AND SOCIAL IMPACT . 10 minutes of reading, all my questions answered and a ton of resources for free. Best Regards!

      2 months ago
  • Dear filmmakers- given the COVID19 pandemic many new issues are now facing productions across the spectrum of media content. It is now paramount to get professional advice and to look at PACT and Bfi guidelines that they are working on now as to how productions will be able to cover themselves re insurance and best practice in the field.This is very new to everyone and won't be ' auto covered' by clauses such as 'force majeure' which would now need precise definition etc. Reports and comments on ideas and suggested practices can be read on Screen Daily and Variety etc. even in the Guardian recently. Protect yourselves and your production! Good luck !

    2 months ago
    • Completely agree! I suspect in the long run it'll only be properly solved once this becomes an insurable risk. If you conclude a contract now, a general force majeure clause most definitely won't cover you because both parties are aware of the current pandemic. So I would be very specific in what happens if things are delayed (further) because of this pandemic, including any future shutdowns because of new mutations of the SARS 2 virus, etc.

      2 months ago
  • Whilst Force Majure or Acts of God, such as a Pandemic, ought to be considered in agreements. There's another Common Law defence that can apply in any Common Law jurisdiction that excuses any act or failure to act that might otherwise be lawful obligation, even to the extent of a crime. It's called Duress of Circumstance.

    If anyone is involved enough I can cite modern cases decided and won on that plea alone.

    2 months ago