Whether you are a screenwriter, filmmaker, composer, producer or other creative professional working in the film industry, at some point you will find that you need an attorney. Now the question is - what kind of attorney, and who should you choose? The phrase "entertainment law" covers many different types of legal work, including forming an entity (a corporation or LLC), film industry contracts, and more. Some attorneys specialize in legal drafting, others are skilled negotiators, others are "movers and shakers" and may even participate in films as producers themselves, and others are adept at finding financing for films. This article will explain what type of expertise you should be seeking in your attorney as well as other qualities that you should consider.
Expertise: In general, the attorney for any of your legal work should have some experience in your specific area of need. For example, if you are forming an entity, then your attorney should be trained in corporate law. If you plan to have specific terms regarding the functioning of your film company in your entity documents, particularly in your LLC operating agreement, you may want to look for an attorney who has formed film companies before and can help you draft the appropriate specific language. If you are going to have particular tax concerns, you will need either an accountant or a tax attorney to assist you with these issues.
For your contract work, you should choose someone with familiarity with typical provisions in such contracts and common negotiating points, and a strong general background in issue-spotting and business and contract law. For agreements dealing with transfers of rights (literary acquisition or option agreements, releases, copyright or trademark clearances, composer or other music licensing agreements, etc.), the attorney handling these types of contracts should have a solid background in copyright law, right of publicity law, and trademark law.
For employment contracts, in addition to a certain level of familiarity with employment law and the appropriate industry standard union and nonunion contracts, your attorney should also be someone with good interpersonal and negotiating skills. Such contracts will be between people that have to work with each other on the film, and you will want to ensure that the drafting and negotiation of the contracts are done in such a way that people feel listened to and respected, and not like they were taken advantage of or that they compromised too much.
Investment and financing agreements are more complicated, because you are dealing not only with film industry issues but also with federal and state securities laws. Technically, all loans and investments in a business are considered to be securities by default, and one must either file to register the securities or ensure that the securities are exempted from registration. Your attorney for these agreements should therefore have a good business law background and knowledge of the securities laws.
If you are looking for someone with connections, this is a very different type of expertise and will involve a different type of inquiry. Attorneys who specialize in putting together deals as opposed to drafting and negotiating will have resumes that reflect such experience.
Litigation is an entirely different specialization, and many business entertainment lawyers do not also litigate. Attorneys who work for firms may have both sets of expertise under one roof. If you are in need of someone to resolve a conflict, you can either ask your business attorney to attempt to resolve the situation without litigation, or you can ask for a referral to a litigator.
Other Considerations:
In addition to specialty and expertise, there are other factors to consider when choosing an entertainment attorney. For example, although an experienced entertainment attorney is ideal, you may be comfortable with someone relatively new to the field, but who you feel is intelligent, hard-working, enthusiastic, responsive and a quick-learner. Your choice will depend on your goals, needs, preferences, budget, and working style.
First, think about your budget and how it relates to the expertise you are seeking. Attorney rates are generally a function of experience (and are also affected by whether the attorney works for a large firm, small firm, or solo, and in what city the attorney practices). You should decide ahead of time whether you prefer someone who already knows everything but will probably have a very high fee, or if you are willing to work with someone still learning and growing, at a lower rate.
If you require an attorney who can make connections for you to producers, distributors or investors, then you should inquire about their fees for such work. Some attorneys will work on a percentage basis, or will require a finder's fee for investments. Some may also require that you retain them for the rest of the legal work on the film, so if you planned on having one attorney assist you with finding partners and another for your legal work, make sure you are comfortable with this situation.
Working style and availability may also be an issue. The most common complaint by clients against lawyers is that they did not return phone calls. You should try to ensure that your attorney will be responsive to your phone calls and emails, no matter how experienced or inexperienced he is.
Once you choose an attorney, you should have an engagement letter or retainer agreement from him or her. Such an agreement should describe the work to be done, the attorney's rates, expenses and billing methods, whether a retainer is required and if so, how that retainer is to be used and replenished if necessary, how you may disengage from the attorney and vice versa, and other details of your working relationship. Carefully review the agreement to make sure you understand your working relationship, particularly the billing arrangements.
When choosing an entertainment attorney, remember that you will be working closely with this person. Give some thought to your expectations and needs, ask other people for their recommendations and research the choices using the internet or other methods. You should also feel free to ask any prospective attorneys questions either by phone or email. Most attorneys will entertain some limited "interviewing," and it will be helpful for you to get an idea about each attorney's particular communication style and personality. There are many good entertainment attorneys in the area, and with a little research and forethought you should be able to find one you are comfortable with!