AVANT, the Valencian Association of Audiovisual Production Companies and Independent Producers, invited part of our team in the department of Legal Advice in the Intellectual Property and Audiovisual Law Area to a breakfast meeting. During the breakfast, our colleagues took the opportunity to answer a variety of questions related to the role played by a lawyer in audiovisual productions.
1.- At what point should the producer have a lawyer in place?
In our experience, a lawyer must be present during an audiovisual production from the very beginning of project development.
This way, if the producer is the creator of the original project idea, the project can be protected both contractually and through registration prior to its presentation to television networks or a digital platform in order to prevent possible appropriation of the project by a third-party.
On the other hand, if the original idea has been acquired from a third-party, either through a cession or an option right, it is necessary to make legal arrangements to ensure the purchase was undertaken in a proper manner in order to obtain all the necessary rights to the project. In view of the above, for a third-party to contribute economic capital to a production, it is essential to be able to demonstrate the chain of title asserting the producer’s claim to ownership.
2.- What can we as lawyers contribute to an audiovisual project?
Our work as lawyers must include providing support and guidance to the producer with regard to those aspects of a production for which they do not have the necessary resources to make a decision with full knowledge of the consequences, maybe due to their ignorance of applicable legislation and courts decisions.
Thus, our team of lawyers not only has specialized legal knowledge in the field of audiovisual law, but also possesses the necessary technical knowledge regarding the functioning of the audiovisual industry, which allows us to add value when assisting the producer in their role.
3.- What are the most frequent errors when starting an audiovisual production?
Probably the mistake that we see most in certain audiovisual productions is the use of general contract models that are not adapted to the needs of the audiovisual industry.
So, the contracts associated with an audiovisual project must reflect not only the specificity inherent to production labor, such as flexibility in working hours, but also the particularities of each individual project. As it can be easily appreciated, the legal structure of a fictional feature film project bears no relation to the structure of a documentary project based on real events, an animation project, or a television series.
We also often find that producers turn to a law firm once they have already signed a television contract or a co-production contract with a project partner. However, because these contracts constitute the ‘rules of the game’ that govern the entire production of an audiovisual project, having legal advice during the negotiation of such contracts is an indispensable baseline. If this legal advice is not secured, the production of the project will be subject to conditions which, although they may be unfair to one of the parties, have been agreed upon by them.
4.- How does the new Data Protection Law affect production companies?
During the development of an audiovisual project, the producer is in possession of a plethora of personal data. Let’s take, for example, the payroll management of the production’s technical and artistic staff, or the reservation of transport and accommodation services. In many cases, this personal data is of a particularly sensitive nature, as is the case with information regarding diseases or allergies collected in order to provide catering services during a shooting, or information about underage actors.
Where this is the case, production companies must comply with the legal requirements provided for in our legislation. It is of fundamental importance that a plan to ensure legal conformity with current regulation be in place, as well as the inclusion of those contractual clauses necessary to obtain the authorization of the people whose information will be processed by the producer.
By way of illustration, it should be noted that, since May 25th, 2018, the date on which the new General Data Protection Regulation came into force, European bodies have received a total of 94,000 complaints relating to the processing of personal data.
5.- What services do you offer at PONS IP?
PONS IP is a global firm with more than seventy years of experience, specializing in intellectual property as well as new technologies. At PONS IP, we provide our services in what we call a ‘360 vision’, whereby three independent yet complementary business units are integrated. As a triple service provider—law office, agency, and consultancy firm—we serve all of our clients needs in these areas of law.
Among our business units, we offer a comprehensive Entertainment Law service. Our team of experts, led by Elena Ordúñez Martín, serves our clients throughout the life of any audiovisual production, from pre-production, throughout production and post-production. Our team of professionals has provided legal advice to some of the most important national and international cinematographic co-productions of recent years in Spain, as well as to fictional series of great relevance in our country.
In addition, we defend our clients in all legal proceedings that may arise during their audiovisual activity.
6.- The production budget is generally quite stringent. Is it expensive to hire a lawyer? Have you also considered working ‘for the success’ on a production?
In our experience, in all the years in which we have provided advice on audiovisual productions, we have observed that the hiring of a lawyer is a profitable investment for the producer, even for a short period of time.
Due to the nature of audiovisual productions, any project may be affected by a number of unforeseen events not envisaged at the time of planning the budget and work schedule. If faced with these unexpected situations, having a lawyer who has dealt with these kinds of unforeseen events in a range of different contracts will give the producer the possibility of continuing with the project at no added cost to the budget that would otherwise make its execution unfeasible.
Imagine, for example, a location contract in which it is not possible to shoot because the scene required a sunny day instead of a rainy day, or the suspension of a day’s shooting due to the absence of a member from the artistic staff.
Also, given that today’s television networks, platforms, distributors, and sales agents require a rigorous chain of title, it seems difficult for a producer to access the best financing channels without the prior hiring of a legal advice service.
Lastly, we at PONSIP do not contemplate the provision of a service ‘for the success’ of a production. As lawyers, we are just like any other production service provider. Providing a service ‘for the success’ would involve moving away from the figure of lawyer and into the role of producer, assuming responsibility for a project whose final decisions are not even within our powers.
7.- What is the profile of your regular client?
At PONSIP we provide legal advice to all kinds of participants in an audiovisual production. In this sense, our team of lawyers has rendered its services to, among others, television networks, film and television production companies, digital platforms, service providers, post-production companies, authors and artists.
In particular, with regard to the figure of the producer, our lawyers have provided their services both in large-budget international co-productions and in the production of short films or lower budget television commercials.
8.- How can you collaborate with the producer to help them finance the project?
In PONSIP we have many years’ experience in providing legal advice on how to obtain both regional and state public funding, as well as administrative resources related to these applications. In addition, we have extensive experience in setting up Economic Interest Groupings and in providing legal advice on other instruments in our regulations to obtain adequate financing for the project, such as contracts with private investors, European and Latin American production support programs (e.g. IBERMEDIA), international co-production agreements, bank discounts, pre-sale of rights, contracts with distributors and sales agents with an advance or minimum guaranteed royalties on the exploitation of the work, and so on.
With respect to digital platforms, and under the premise that a lawyer is, under no circumstances, a sales agent, our experience in negotiating with leading platforms (NETFLIX, HBO, AMAZON, etc.) affords us a broad knowledge of the legal issues related to them, along with an awareness of the legal requirements with which a project has to be taken into consideration by the platform, as well as the standard negotiation conditions with each of the platforms.
9.- What kind of legal elements would you consider relevant in a script for a feature film?
Currently, carrying out a legal analysis of the script of the audiovisual work is a crucial task in the development stage of the project. This activity makes it possible to identify existing legal risks in order to weigh up their inclusion in the feature film.
On the one hand, this work makes it possible to identify any elements of the script that may be protected by a third-party intellectual property right in order to obtain the necessary license to use for its inclusion in the feature film or to reach commercial agreements (product placement). Consider, for example, registered trademarks, posters, paintings, musical works, dances, newspapers, news programs, etc.
On the other hand, this work also makes it possible to point out the elements of the script in which the right to freedom of speech may be restricted. There are well-known cases in which the exploitation of a work has been made difficult, even with penal consequences for its authors, because it falls within what is known as ‘hate crime’. We can cite the legal proceedings in relation to the book ‘Fariña’, the magazine ‘El Jueves’ or the works of the ‘ARCO’ fair.
10.- What would your participation in the different stages of audiovisual production be like?
As a general rule, within the project development stage, our legal advice consists of the planning and development of the contractual structure of the project (commission contracts with a television or platform, production contracts with the authors of the work, co-production contracts, etc.), as well as the realization of the aforementioned legal analysis of the script. In addition, during this stage, we provide our services providing legal advice in the different ways of obtaining financing (public subsidies, contracts with private investors, national and international distribution contracts, pre-sales contracts of rights, product placement, etc.).
Between the development and production stages, our work also includes the drafting of contracts for both the technical and artistic staff of the audiovisual work (including negotiation with the actors’ managers), for the locations where the filming will take place, and for the producer’s suppliers (camera equipment, sound, catering, marketing, etc.).
In addition, during the production stage, we advise our clients on conflicts that may arise in the light of signed contracts (for example, the refusal to carry out advertising or still photography, the introduction of modifications in the script for the shooting version, etc.)
Lastly, in the post-production stage, we provide legal guidance in the drafting and reviewing of contracts with the post-production and dubbing company, as well as in contracts for the sale of both national and international rights.
To all the above we must add our legal advice service in the resolution of conflicts that may arise during the creation and exploitation of the work.