Film law is a subset of general entertainment law. Film lawyers typically represent production companies, directors, screenwriters, documentarians, composers, etc. in contractual affairs relating to the production and release of motion pictures.
When should you consider consulting a film lawyer?
Film lawyers can be helpful throughout the filmmaking process.
At the pre-production stage, film attorneys can set up your production company as a corporation or LLC and/or prepare the requisite film financing documents that allow you to legally collect funds from investors. They can also assist in acquiring the rights to make the film such as optioning a book to be turned into a movie or negotiating for a film subject’s life story rights.
A good film lawyer should also be able to advise you on applicable film incentives programs and provide guidance on dealing with unions such as Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA), the Directors Guild (DGA), and/or the Writers Guild (WGA).
During production, film lawyers can be instrumental in drafting and negotiating the numerous production contracts and releases that are required of filmmakers. Without carefully crafted written production agreements in place, you may not be able to secure distribution for your film. Worse, you may have distribution of your film blocked or yanked by an angry [cast/crew member, musician, publisher, etc.] if you do not have language in your film contracts limiting remedies to monetary damages.
In post-production, film attorneys often review the rough cut for legal issues, help with errors & omissions insurance applications, and review/negotiate distribution proposals.
Do I need a film lawyer if I’m making a documentary?
Film attorneys can be valuable resources for documentarians. Like producers of feature films, documentary filmmakers generally need to have well-written releases from the persons and locations that appear in the film. However, documentarians can often successfully employ fair use in their films where feature film producers cannot. This means that the makers of documentary films may be able to produce their films at lower cost by not needing to license and pay for certain third party materials (e.g., music playing in the background of a scene, display of copyrighted images).
To be clear, producing a documentary does not mean that you are free to use copyrighted works in all instances. Fair use analysis always depends on the specific manner in which third party material is actually used and incorporated into the documentary. Further, an attorney can only provide an opinion as to whether the use constitutes fair use. Only courts can issue a binding fair use determination, with such determination being based on a balancing test rather than any bright line rules.
For an excellent guide to fair use considerations for documentarians, please read The Documentary Filmmakers’ Statement of Best Practices in Fair Use.