Superman Can Wait: My Personal Experiences With Not Getting Agreements In Writing

You know, I say "get everything in writing" so often on this blog that I feel like I should have it pre-engraved on my headstone. I may be a broken record about it, but that's only because I've had plenty of first-hand experiences where that information would've come in handy. Here's one such experience that proved so formative, it helped shape my eventual journey from film to the law.

In the summer of 2002, I was a freshly minted RISD grad working in the vault of a major post-production house in New York City. I was hoping that after a few months organizing shelves of film and tape, they would call me up to the big leagues so I could learn to be an assistant editor or color correctionist. It wasn't my dream, but it was proximate enough to my dream that I stuck it out. In late August, my friend Maureen from college called and told me about a job opportunity she knew I couldn't pass up. After graduation, Maureen moved back home to Orange County where she was picking up odd jobs in the film business. A friend of hers - who I'll call Jenny because I can't remember her actual name - had been an assistant editor on Brett Ratner's films, and because Ratner was about to direct the new Superman movie, Jenny was slated to work on it. According to Maureen, Jenny could get me a job as a production assistant on the film, but I had to get my ass to L.A. pronto, since production was ramping up. This meant leaving my steady job and steady girlfriend (who eventually forgave me for moving 3000 miles away and married me) and taking a hell of a risk. Other than Maureen, I didn't know anyone in California. I had no money, no connections, nowhere to stay. I was going out on a limb, and trusting to fate, God, the universe, whatever, that it wouldn't snap beneath me.

With Maureen's help, I called Jenny who put me in touch with the production company. The woman I spoke to there was very encouraging and though she couldn't guarantee I'd be hired, she assured me that once I got to Los Angeles, I could come in for a proper interview and, most likely, get myself a set PA job. A month later, I was in the City of Angels, ready to make my dream come true.

"A job as a production assistant?" you might ask. "That was your dream?" Well, yes. Certainly I had no illusions about where a PA's job was on the totem pole. I knew the majority of my job would be making coffee runs to the nearest Starbucks. But this was a chance to work on a Superman film. SUPERMAN! For those who don't know me, Superman is my jam, particularly Christopher Reeve's iteration. Not enough to name my kid Kal-El or anything, but growing up, he meant a lot to me. He represented the ideal of heroism and goodness in a world that seemed continually bereft of both. He was what I wanted to be. It didn't matter that the script Ratner was working from (written by J.J. Abrams) had leaked online and been universally lambasted. It didn't matter that Ratner had only one good film under his belt and was widely considered a hack. It only mattered that it was Superman and I would be on the same set as him. How could this not all work out?

Oh my friends, how I'd love to tell you the gambit paid off. And if life were more like a movie, it would have. But within weeks of landing in L.A., Ratner was off the project and it reentered development hell. And all of a sudden, I had to make a life for myself in a strange place with no resources. You could say I acted recklessly, that I was dumb. And you'd be right to say that. A smarter man might have waited for an official job offer from Warner Bros, something in writing that I could hold in my hand on that plane ride across the country. But I was young and ambitious and excited to get started before there was even something to get started on. I upended my life without a guarantee of employment, only the vague promise of it.

But do you know how many artists do the very same thing? Sure, most don't move across the country for it, but it's so common for artists to get excited and start working on something before the deal is written down that it can take up anywhere from 50% to 75% of my law practice. So when I tell you to get everything in writing, I say it not just because it's smart business, not just because I see my clients going through it, but because I've lived it and know what can happen if you don't. Getting all your deals in writing protects your interests and holds everyone accountable. It should be an invaluable tool in your arsenal. So learn from my mistakes. If the job is important enough, it can wait until everything is written down. 

Steven Soderbergh Turns Raiders of the Lost Ark Into Silent B&W Fan Film, No One Sues

A long time ago, I was a young aspiring filmmaker and wanted to learn - really learn - how to make good films. So I went to a family friend who had some connections in the entertainment business and asked him what to do. He said "watch a lot of films."

So I did. And I became a colossal movie nerd. And even though the filmmaking part of my life is over, I still watch movies to learn from them. It's nice to know I'm not alone.

The other day, Steven Soderbergh, one of the most interesting mainstream filmmakers working today, posted on his blog a version of Raiders of the Lost Ark that he recut into a silent B+W film as an exercise to learn about film staging from Steven Spielberg, a "filmmaker [who] forgot more about staging by the time he made his first feature than I know to this day." He also replaced the classic John Williams score with the score from The Social Network, by Trent Reznor and Atticus Ross to strip away everything familiar about the film and "aid you in your quest to just study the visual staging aspect." For Soderbergh, staging is important because it "refers to how all the various elements of a given scene or piece are aligned, arranged, and coordinated...I value the ability to stage something well because when it’s done well its pleasures are huge, and most people don’t do it well, which indicates it must not be easy to master."

In other words, "I operate under the theory a movie should work with the sound off, and under that theory, staging becomes paramount."

As a movie nerd, I love that Soderbergh did this. As a lawyer, I'm cool with it too. In his blog post, Soderbergh strikes a defensive, almost sheepish, tone, saying that he's aware he's not allowed to recut Raiders, but did it anyway as a learning exercise. This hedging caught me off guard a bit, since it stands in opposition to the confidence he displays in the rest of the piece. Nevertheless, if I was his attorney, I'd tell him not to worry; as far as I'm concerned, this is a classic fair use scenario. I've spoken about the pitfalls of relying on a fair use defense in the past. My chief concern is that it's not a cut and dried thing. You have to weigh different factors based on the particulars of your case. To complicate matters, fair use is an "affirmative defense" which means you have to wait until you're sued for copyright infringement in order to assert it. It's a tough legal doctrine to use and even tougher to use well.

That doesn't mean you always need to ground the flight before it takes off, however. There are some pretty useful questions you can ask ahead of time to gauge whether using someone else's work without their permission is a risk you want to take. For starters, understand that the issue is less "what" are you doing to the already copyrighted work than "why" and "to what end?" If you're trying to make money from it or impinge on the owner's right to profit from it, that's the kind of thing a court would smack you for. But if you're using the work to inform and educate, or if your use says something critical about the work, those are the classic fair uses scenarios. In this case, that's exactly what Soderbergh is doing. He recut the film in order to say something about a crucial aspect of filmmaking. The fact that he's using Raiders to comment and teach is critical to the analysis, and it helps douse a potential lawsuit before it ever arises.

Don't forget the politics of this either. It's doubtful that Paramount (the film's copyright holder) or Spielberg would want to drag him through a legal proceeding. Soderbergh is a respected and beloved filmmaker, still at the height of his power (The Knick, anyone?). He's a potential collaborator and some of his movies made real money - i.e. the Oceans Trilogy. That's not a gift horse you look in the mouth. And let's be honest, this is precisely the kind of nerding around that Spielberg would probably appreciate.

Raiders of the Lost Ark is my all-time favorite film and Steven Soderbergh relied on fair use to recut it and show us just how great it is. In some alternate universe where I'm still 19-years old, I'm over the moon excited to watch and learn from it. Hell, 34-year old me still is.

Filmmaker-2-Filmmaker: Tip 5 - Why Public Domain Music Isn't As Cheap As You Thought

During my last year in film school, I got some bad advice.

I was working on my student film, the one that would have to play in the senior film festival. I had no budget and most of my actors and crew were generously donating their time to help me finish what I expected would be a masterpiece.

As post-production loomed, I began searching for music to score my film that fell within my budget - zero dollars. I was hoping to hire a local Providence-based band, but none of the ones I contacted were willing to do it for free. While I didn’t know much about copyright back then, I knew enough to avoid using popular songs and I didn’t want to get pinched for illegally downloading music (back then, Napster was all the rage).

Witnessing my plight, a friend suggested that I use classical music. His reasoning: the songs were composed hundreds of years ago and were in the public domain, so I wouldn’t have to ask anyone's permission and I definitely wouldn’t have to pay anyone for the privilege. Even better, classical music would give my film an air of sophistication, like 2001: A Space Odyssey. Because nothing demonstrates film school hubris quite like comparing your student film to one of the greatest pieces of cinema ever made.

Anyway, I followed my friend's advice and used classical music. The film played in the student filmfest and, while not exactly on par with Kubrick’s masterwork, it was moderately well received. I sent it off to some real film festivals and was rejected by all of them.

My friend was right about one thing: music composed before 1922 is not protected by copyright law. As a result, it lives in the public domain (meaning you can use it for any purpose without paying for it). But it was still bad advice. As I later learned in my producing career, where music is involved, not only is the song itself subject to copyright protection, the RECORDING of that song is also explicitly granted copyright protection. Which means that most music is protected twice under the law.

Why are recordings granted their own copyright protection? Because they're considered separate works of artistic expression. The copyright to a piece of music protects only the WRITTEN music and accompanying lyrics. The copyright to a recording rests with the specific audio RECORDING of the song. More than that, each separate recording - even if it’s of the same song - is granted its own copyright. A live recording of Eric Clapton’s Layla (like the famous MTV Unplugged version) has a separate copyright from the original recording which appeared on the 1970 album Layla and Other Assorted Love Songs because it's a completely unique and discrete interpretation of the song. And each of those copyrights stand apart from the copyright granted to the words and music as written by Clapton and his partner Jim Gordon.

Even if the music is in the public domain, copyright protection will still attach to recordings made after 1922. Just yesterday I was listening to a rendition of Fare Thee Well (Dink's Song) by Marcus Mumford and Oscar Isaac off the Inside Llewyn Davis soundtrack. The origins of the song can be traced to 1904, which means it predates modern copyright law. But a simple iTunes search will reveal dozens of recordings of the song by Bob Dylan, Pete Seeger, Dave Van Ronk, Jeff Buckley, Ramblin’ Jack Elliot, and many more. Each recording of the song gets its own copyright, even though the music and lyrics are no longer protected.

So the moral of the story for all you filmmakers out there: don’t do what I did and think you’re getting off scott free just because you chose some archaic piece of music that was popular during the Napoleonic wars. You’ll still have get permission from the owner of the recording's copyright.