JULY 11, 2015
YOU DON’T need to be an independent film producer to enjoy this book.
Clearance & Copyright is like a very long and convivial conversation with your own personal “dream lawyer,” someone highly accomplished, yet wise, with a sense of humor. Who wouldn’t find that conversation fascinating and a great read? Oh, and if you do happen to be an aspiring producer, or have ever wondered how Hollywood really functions at a profound creative and business level, you will learn a lot from Michael Donaldson and Lisa Callif. They co-wrote this fourth edition of what has already become a classic legal how-to book in a seamless way, as one voice, much as they practice law together as the founding partners of a leading Los Angeles boutique independent film law firm, Donaldson + Callif.
In their zeal to communicate complex and sometimes scary topics like copyright lawsuits in a nonthreatening though realistic way, the authors don’t shy away from an engaging casual-speak that is too rarely encountered in books written by lawyers. So the complexities of international copyright protection and the Berne Convention’s copyright largesse qualify for “Pretty cool, huh?”; intimations of licensing intimidation by rights holders are “Pretty heavy stuff!”; and the challenging process whereby a film obtains essential “Errors & Omissions” insurance against copyright liability merits a simply awesome and probably record-breaking use of “Hmmmmmmmmmmmm” (yes, 12 m’s).
Here, the message is clear: Donaldson and Callif love works of the creative mind. They love those who have the creative and business gifts necessary to create something out of nothing and are genuinely excited to help them by sharing their knowledge in difficult areas such as copyright law and the film industry. At every turn it conveys the message that legal advice is important because it serves creativity by solving real-world problems, among the thorniest that exist in the unique human enterprise that is storytelling for the cinema.
The book avoids being pedantic, instead treating the client/reader as a person who must ultimately rely on the elusive human “trust” factor in personal and business dealings. The prime directive that emerges is to avoid legal entanglements by being well counseled, because legal disputes can not only destroy art itself, but also notoriously destroy the very friendships and trust required to create something as complex as a motion picture:
If you back away from doing business with those you don’t trust, with whom you don’t connect on a human level, you have reduced the odds of unhappy encounters even more. If you choose your friends and your business associates with uncompromising care, you won’t have to spend so much time with lawyers.
While the overall strategy is to overcome legal and business challenges by being informed, tactically the authors are like confident generals whose army of legal information remains at their full disposal, hidden just on the other side of the next metaphor, ready to reveal itself if and when needed.
Structurally, this book follows a logical film production course, beginning with “A Stroll Through Copyright Law,” then “Getting a Script Completed,” “Principal Photography,” and “Post-Production.” The chapters within these sections, while delving into details, always strive to entertain, such as the chapter on “All Those Pesky People Who Show Up in Your Film,” which discusses rights of privacy, publicity, and defamation. There are also subchapters that examine important detailed facts of production — but do so with refreshingly plain language mixed spicily with industry buzz words. For example, the section on “Shooting Without a Location Agreement” has subsections including “Guerilla Filmmaking,” “Documentaries,” and “Undercover Reporting: Hidden Cameras.”
Among the greatly educational and yet entertaining features are film clips available via short internet links provided in the text. These include film and video excerpts from famous real cases, and sample legal contracts, also known as “forms,” that are presented in the text with annotations, and can be obtained as clean editable documents by sending an email to addresses given in the text. I tested that system and the form arrived in my email inbox with a note from their law firm saying, “Thank you for using Clearance and Copyright! Please click on the link below and your document will begin downloading. And like we always say, ‘Here’s to staying out of trouble!’”
As one example of the authors’ combination of legal and business commentary and sheer humanity, the following quote is typical, and is taken from comments regarding the “option payment” in a sample Option and Purchase Agreement for Underlying Rights (for example, where an independent film producer options a novel for a potential film and must negotiate the amount of that payment, which, in effect, puts the novel on hold while the producer commences fundraising and development of the project):
Hint: Since you do not have the deep pockets of a studio, your first job is to convince the owner of your passion for the work. Listen to the owner’s dreams and hopes. You will be the protector of those dreams and hopes. As self-serving as it may sound, it truly is not about the money at the option stage. Except in big studio deals for hot properties, the initial payment is simply not large enough to be the most important aspect of the deal. The likelihood of the film getting made is the important thing. However, the emotional hook — the sizzle that closes your negotiation — can be a simple promise from you: “If you entrust your property to me, I will be as honest to your work as possible. I will keep you advised every step of the way, and I will do my best to protect you.”
That note underscores the strength of the book: it is very much like having a real conversation with Donaldson and Callif, two experienced entertainment and copyright attorneys who have also written a book on independent film and scholarly articles on copyright law. They have also changed the documentary film industry regarding the role of copyright’s fair use privilege, by pioneering legal “opinion letters” on fair use that allow filmmakers to obtain important insurance coverage. The book’s “you are the client” approach lifts the veil on their lawyering skills, and they thrive on the opportunity to speak their minds in this book, making it a surprisingly compelling read for even the average reader.
Take, for example, this comment regarding use of trademarks in a film scene: “Just because you can legally do something does not mean that you will not anger the owner of the logo. They might try to come after you nevertheless. Bullies do that every day.”
There is also drama in the accounts of leading cases on documentary film fair use. For example, the authors present a case involving a dispute between Yoko Ono and a film that used John Lennon’s “Imagine” for a moment of religious commentary. Yet even mundane topics such as how to fill out an Errors & Omissions insurance policy become focused and mission-critical. I actually enjoyed reading the insurance policy form and the authors’ comments, pausing only halfway through to realize the book had arguably transformed me into a nerd.
For readers who are entertainment, copyright, and trademark lawyers themselves, the book includes several appendices with a glossary and a chapter-by-chapter table of cases mentioned in the text, with full citations for further study.
Finally, the authors’ ability to foresee what can occur to “creatives” who use other people’s copyrighted material comes full circle on page 22, where they include a note to future reviewers, encouraging fair use quotations in reviews, but eerily (and perhaps stingily) suggesting such quotes be limited to “a quote or two,” which I have herein grossly exceeded:
For instance, if you are critiquing this book, a quote or two from the book might be helpful. But if I didn’t like you or what you had to say about my book, I could stifle your commentary except for the fact that your use would be protected by the concept of fair use.
The wonderful irony is that after reading every word of their book, I am supremely confident that I have not exceeded the bounds of fair use by quoting from its copyrightable expression so generously.