Greg Pak: FilmHelp: Rights & Legal

Actor’s Release Form

By Greg Pak
Here’s an actors/extras release form I’ve used in the past. It’s a bit more comprehensive than some others I’ve seen. Please note that presents these forms for reference only and takes no responsibility for their use. As always, consult a lawyer before using if you have doubts.
I hereby irrevocably grant to __________________ (herein “Producer”) and any parent, subsidiary and affiliated corporations and their respective successors, assigns, licensees, employees and agents, the right in perpetuity thoughout the universe, and in all now known and hereafter existing media, and in any language, to use my name (including any fictitious names heretofore or hereafter used by me), physical likeness and/or voice in and in connection with the production, exhibition, exploitation, merchandising, advertising and promotion of the motion picture tentatively entitled ___________ (the “Picture”).
I agree that the foregoing grant includes the right to use my physical likeness in any form, including, without limitation, a photograph, picture, artistic rendering, silhouette or other reproduction by photograph, film, tape, or otherwise.
I represent to the best of my knowledge that the consent of no other persons, firm corporation or labor organization is required to enable Producer to use my name, likeness and/or voice as described herein and that such use will not violate the rights of any third parties.
I acknowledge that nothing herein requires Producer to use my likeness and/or voice as described herein or in connection with the Picture.
The rights granted herein include the right to use the Picture or excerpts or stills form the Picture (include excerpts or stills containing my likeness and/or voice) in any other motion picture, publication, recording, or other medium and includes the right to edit, delete, and/or juxtapose (with any other part of the Picture), any part of the Picture in which I appear, and/or change the sequence of events in the Picture.
All rights, title and interest in and to the results and proceeds of the services and performances rendered by me in connection with the production of the Picture or any portion therefor shall, from its inception, be the sole property of Producer, free from any claim whatsoever by me or any other person.
This agreement contains the full and complete understanding between the parties and supersedes all prior agreements and understandings pertaining hereto and cannot be modified except by writing signed by each party.
I hereby certify and represent that I am of legal age and have every right to contract in my own name in connection with this Release, and that I have read the foregoing and fully understand the meaning and effect thereof, and intending to be legally bound I have signed this Authorization this ________ day of ____________________, 2002.
Print Name

Non-SAG, Please

By Greg Pak
Please note that this article was written in 1999 — since then, SAG has updated its contracts and to become even more friendly toward independent projects. This article is no longer up to date — filmmakers are HIGHLY recommended to contact SAG to learn about the new contracts.
There will be times when you cannot cast your micro-budgeted film properly without using SAG actors. But if you have hopes of marketing and selling your short film, I strongly urge you to use non-SAG actors if at all possible.
Here are the reasons why:
SAG, or the Screen Actors Guild, has an Experimental Film Agreement (for productions with a budget under $75,000) which many low-budget filmmakers sign in order to use SAG actors. As with all SAG contracts, the producer must adhere to SAG rules (regarding hours worked, etcetera) and must provide worker’s comp. The twist is that the Experimental Agreement allows the producer to defer salaries to actors until the film is sold.
The Experimental Agreement is a good, even generous deal, but if you’re making a short, the reality is that you’ll never make any money if you sign this contract and use SAG actors.
Here’s how it works: Say you shoot one day, with two SAG actors. You owe them about $600 each, payable upon the sale of the film. That’s $1200. Which means that when you’re offered $300 by a local PBS station to screen your film, you’re contracturally obligated to pass those dollars directly to your actors.
Here’s a real world example:

To make “Mouse,” I shot for five days with two actors. I believe the SAG rates at the time were around $575 a day with a weekly rate of $2000… So I would have owed my actors a total of $4000, had they both been SAG.
Over the past two years, I’ve sold “Mouse” to four local PBS shorts anthology series, one Japanese satellite television station, and the International Channel’s Asian American Film Festival, for a grand total of about $3750. Had my actors been SAG, I would still be paying them off and would not yet have earned a dime toward reimbursing my $8000 in production expenses.

An even more extreme example:
I have a friend who made a 30 minute film with some 20 SAG actors. His deferred SAG bill must clock in at over $100,000. His film has been very successful on the festival circuit and won a number of awards. But no one will ever pay him enough to pay off that incredible SAG bill.
Do not misconstrue this article as a diatribe against SAG: SAG is just doing its job, looking out for the pocketbook interests of its members. And for a feature film, which has the potential to make a good deal of money in distribution, the Experimental Contract represents an honest and helpful effort by SAG to make it possible for low budget filmmakers to make good films.
Furthermore, there are other SAG agreements which might be more to your liking — the Limited Exhibition Agreement has its advantages and disadvantages. Depending on your project, you might also want to look at the Low Budget Agreement, the Affirmative Action Low Budget Agreement, and the Modified Low Budget Agreement.
Finally, SAG actors are frequently excellent — you may find during casting that the perfect actor for the lead in your film is SAG.
So be it: if it makes your film a better film, cast SAG. I merely counsel filmmakers to be aware of the consequences: as soon as you cast a SAG actor in a short film, you most likely surrender any hopes of making your money back and thus inhibit your ability to distribute the project as extensively as you might like.
You make the call.
Relevant contact information:
SAG’s New York office: 1515 Broadway, 44th Floor, NYC 10036, 212-827-1510
SAG’s Los Angeles office: 5757 Wilshire Blvd., LA, CA 90036, 213-549-6828

Music Rights Nightmares

By Greg Pak
My two cents? Use only original music.
I’ve seen some great short films at festivals which I know I’ll never see on television — that Beatles song in the background will kill ya every time. As I’ve learned, even cutting a church hymn into your film may present a music rights nightmare and threaten your opportunity to make a sale.
In broad strokes, here’s how it works:
Scenario A: If one of your characters hums a few bars of an existing, copyrighted song, you’re legally obligated to pay the song writer (or, more commonly, the representative of the song writer or the present owner of the song) for what are called “synchronization rights” — basically the right to use the tune and lyrics.
Scenario B: If one of your characters turns on the radio and we hear the song being sung by the original artist, you have to pay both for the synchronization rights and for the rights to the performance of the song. Certain performers will cost more money — most likely, Three Dog Night’s rendition of “Joy to the World” will cost you more than Hoyt Axton’s. But the reality is that either version will cost you more than you can afford.
Here’s the real world example:

I used two church hymns in “Fighting Grandpa.” I recorded them live in my Uncle Harry’s church — thinking (like an idiot), “Oh, church music, public domain, no problem.” In the frenzy of my final month of editing, I cut in the music and did my sound mix without ever confirming whether the songs really were public domain.
Four months later, when Cinemax offered to licence the film for broadcast, I was of course thrilled. But the HBO/Cinemax contract requires (among many other things) that all of the music rights be cleared. So a long process of tracking down the owners of the songs and negotiating a price began. In the end, I paid $650 for both songs, which is on the cheap side. And since I negotiated with Cinemax for that money to be paid by them, I came out financially unscathed.
However, months later, I received an offer from an international distributor for “Fighting Grandpa.” Now I would have to get worldwide rights to the songs… A few phone calls later, I learned that I’d have to pay thousands of dollars for each song for the kinds of clearances I wanted, which was clearly impossible.
The upshot is that I’ve gotten a composer to write some original music to replace these songs and I’m remixing the music tracks. In the end, I’ll have to pay about a thousand dollars, which is less than ten thousand dollars, but which still stings. Particularly since I could have avoided the entire mess if I’d just had a composer write original music for me in the beginning.
Of course, just as there are times when the perfect actor is SAG, there will be times when the perfect music is that old Bo Diddley song… If your film absolutely depends upon it, do what must be done. Far better to have a great film everyone loves which can only play in festivals than a mediocre film which no one wants that can play anywhere.
But if you can make your film just as strong without the encumbrances of SAG actors and onerous music rights, so many more opportunities will arise.