Film school and production classes teach filmmakers how to script, shoot, and edit a movie, but when it comes to navigating the legal side of film production, emerging producers must often figure things out on their own. Sarah Spring, the outgoing executive director of the Documentary Organization of Canada (DOC), says she heard all too often about members having the honeymoon phase of their projects thwarted by Frankenstein contacts that basically serve as spaghetti strainers when it comes to being legally sound.
“When you’re first starting out as a producer and you’re trying to make a film and get a broadcaster, they’ll say, ‘Give us all of your chain of title, give us all of your legal agreements,’ and you’ll say, ‘I don’t have any of those and I don’t have any money.’ So you call producers that you know and you say, ‘Hey, do you have a template?’” explains Spring.
Filmmakers will often modify the contract they get from a colleague, Spring notes, but that contract may have already been modified by the colleague who sent it to them or the colleague who gave it that person beforehand. “By the time you’re using it, it’s very possible that it actually is not legally very protective. When you get to closing your financing, or if you run into legal trouble, you’re not protected and the production is at risk,” says Spring.
DOC addresses that recurring challenge with the latest addition to its Filmmaker Toolkit: a collection of boilerplate contracts offer legal frameworks for filmmakers unsure how to protect themselves or their projects. The documents come through frequent DOC collaborator Remy Khouzam, a veteran arts and entertainment lawyer of the Montreal-based firm Lussier & Khouzam.
“I’ve been doing this for 25 years now, and I know that lawyers scare people, especially when you need them the most and especially when you’re starting out, we cost a lot,” says Khouzam. “It’s prohibitive and most filmmakers will feel like they’re not ready yet or they don’t know what to ask. My practice has always been geared towards going to and reaching out to filmmakers and trying to make the legal process as easy and simple as possible.”
Khouzam says that his previous work with the DOC Business Leaps program echoed Spring’s observations that producers entering the field were often left to their own devices, and therefore vulnerable, when making their productions legally sound. “What happens with these contracts [that filmmakers pass along from one to another] is that they become very confusing. They become contradictory and sometimes they become incomplete,” notes Khouzam.
Khouzam says the toolkit helps filmmakers take a bigger picture perspective from the outset to consider questions that might arise when they’re years into a project. “For contracts, think in the long term because a lot of these things are questions you don’t necessarily think of when you’re starting out, and they might come back and haunt you later,” he says. “There’s the actual moving forward of what the project demands, but years later, you might find out that there are things missing that you didn’t consider. If someone wants to pick it up again and you don’t necessarily have the proper rights, there might be barriers. This is one of the purposes of these contracts.”
The filmmaker toolkit offers templates and guidance for producers in terms of errors and omissions (E&O), production contracts, or even seemingly basic steps like title searches.
“Every production that’s financed with the commercial financial structure in Canada necessitates a title search,” notes Spring.
That step, which Khouzam’s firm facilitates through the sibling company KineSearch, checks for like-named projects or titles that may invite legal hiccups. “KineSearch, does a lot of title searches, copyright or copyright searches, trademark searches, and script clearances for fiction,” Khouzam explains.
Khouzam notes that the originality criteria under the Copyright Act typically doesn’t cover titles because they generally use generic daily words or phrases and aren’t long enough to be considered literary works. Put another way, that explains why both Paul Haggis and David Cronenberg can have films called Crash, but someone releasing a bird documentary called A Pigeon Sat on a Branch Reflecting Upon Existence might have trouble if Roy Andersson was Canadian.
“What we’re looking for is how a specific title was used in the past in relation to various film, TV, literary music projects, and if it’s unfair competition,” says Khouzam. “What you’re trying to do is basically try to establish is whether or not a title is being used in a way that may create confusion with a previous title. Is there a possibility that the public will somehow artificially connect both works? If it’s done intentionally in a malicious way, you’re basically acting as a parasite to someone else’s goodwill and success.”
Generally speaking, the toolkit applies across the board so that filmmakers from all corners of Canada may have consistent contracts for in-house contracts that can then be amended to suit the needs of funding bodies. Areas that vary by province to province, like employment agreements, aren’t covered by a boilerplate, but the consistent groundwork is done for producers.
“You get writer, director, co-production agreements, musical composition agreements to build the contractual infrastructure of a project,” explains Khouzam, who notes that most of the legalese considers intellectual property, which the Copyright Act covers federally.
Spring says the coast-to-coast accessibility of the toolkit, available in French and English, reflects DOC’s mandate to eliminate barriers for production. It’s a big step in the wake of DOC’s growth after opening free memberships to documentary professions who identify as Black, Indigenous, and People of Colour—a step that doubled DOC’s membership in just a few years.
“There are hundreds and hundreds of creators who are stepping into this part of the industry for the first time, whereas others have been making work for years and are experienced storytellers, but haven’t been navigating within the mainstream, more corporate funding side of the sector,” explains Spring, who notes that it requires a different level of preparedness to pitch a project at, say, a Hot Docs Deal Maker meeting and another to get the call from CBC give that pitch the greenlight.
“The best case scenario, this is something that Remy has taught me over the years, is that you need to have this protection because it means that when you do hit roadblocks, it’s clear how to move forward,” says Spring. “A lot of the conflict comes from a lack of clarity about what everyone’s roles and responsibilities and obligations are.”
Access the filmmaker toolkit here.
