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State Bar of MI ACES Panel "Public Art and the Creative Economy" This FRIDAY

2012-09-19T12:27:54Z

The State Bar of Michigan Arts, Communications, Entertainment and Sports Section is hosting a panel discussion entitled "Public Art and the Creative Economy" this Friday, September 21 at 2:30 PM at DeVos Place in Grand Rapids. The panel is part of the State Bar's Annual Meeting, and is open to the public. The event will be held in Grand Gallery Overlook Meeting Room E at DeVos Place (check the layout for the exact location). DeVos Place is an active venue for ArtPrize, which is taking place throughout downtown Grand Rapids.

"Public Art and the Creative Economy" will explore concepts related to the interplay between art and law, and specifically public art and the economy--creative or otherwise. The panel will include a short presentation by Todd Herring, the Marketing Director of ArtPrize. Other panelists include Stephanie Neal from the Grand Rapids Art Museum, Paul Wittenbraker from Grand Valley State University, and Tom Williams from McGarry Bair. Joe Voss, the practice leader for Clark Hill's Entertainment Industry Team, will moderate.

Clark Hill is a proud sponsor of ArtPrize 2012.

Using Entertainment Attorneys 101.2: Liability Protection

2012-08-28T12:20:43Z

Entertainment attorneys spend a lot of time bridging the gaps between creativity and business. In fact, that probably works as a concise job description for most lawyers who focus their practice on serving clients that are active in the entertainment industry and the arts.

Limiting personal liability for industry clients is a key component of the entertainment law practice, and it is often something that only experience--generally negative experience--can inspire entertainment professionals to act. Even though much of the how-to guidance in print and on the web loudly suggests that getting in touch with an attorney in the early stages of the creative process, in many cases, the cost--or even the POTENTIAL cost--prevents people from making contact with lawyers.

At the risk of piling on: suffice it to say that we think you should make contact with an attorney in the early stages of any creative venture too. But what should you expect when you make that initial call or meeting? We'll cover legal fees and how to navigate payment for legal services, as well as ways to manage attorney time, in future posts in the 101 series, but here the focus is on one of the likely topics that will be covered in your first interaction with an entertainment attorney: personal liability protection.

Personal liability means having direct responsibility for the debts or obligations of any venture. We're generally talking about civil liability here--issues that involve money--rather than criminal liability. There is no way an advance meeting with an attorney is going to protect you from criminal liability, and if criminal activity is involved, the techniques an attorney might employ on your behalf are not likely to keep you from paying the consequences.

The best way to shield individuals from personal civil liability in creative or commercial ventures is to avail yourself of the business entities that state laws have created. The limited liability company ("LLC") and the corporation are the two most commonly used business entities in the entertainment industry, and both of them allow individuals to create an organization that exists separate and apart from the people who own it. The organization can own property, make contracts for the purchase or sale of goods and services, and generally enjoy the protections of the law given to individuals.

When you sit down with an attorney to talk about what is involved in your creative venture, be it an independent film, a music project (e.g., a band's first album or show, starting a new record label), or a commercial web-based production, the first meeting should focus on the creation of a business organization to protect the individuals from liability.

There are differences between the LLCs and the corporation, and each state has its own laws that govern these entities. At an basic level, the LLC is a more flexible creature as the corporation requires some additional formalities that can be cumbersome. There are advantages and disadvantages to both, however, some of which are related to accounting considerations in addition to legal issues, so an initial attorney meeting can be useful to gain an understanding about what choice of entity is right for your project.

It can seem overwhelming--complicated, expensive, a waste of time--but nothing can derail a creative project quite like a lawsuit targeted at the individuals involved. Some initial legal legwork and relatively small investments of time, energy and money can provide broad liability protection and leave you with the space to do what you do best: create.

The lawyers in the Clark Hill Entertainment Industry Team are sharing some information that may be helpful as you seek the services of an entertainment attorney--check back for more installments of the "Using Entertainment Attorneys 101" series.

Using Entertainment Attorneys 101.1: Script Submissions

2012-08-16T21:54:25Z

One of the most common facts that lead creative people to seek the services of an entertainment attorney is that production entities (e.g., studios, television networks, independent film production companies) DO NOT ACCEPT UNSOLICITED SCRIPTS. When people have ideas to pitch--or even completed scripts--they naturally want the production powers-that-be to see their work. And it makes sense. How else do studios get the ideas and scripts for the blockbuster films they turn out? Where else do cable network pilot episodes come from?

But it generally takes just one attempt at submitting an idea or script to an established production entity to find out that you must have either an agent or attorney submit your property on your behalf for it even to last more than a day or two in a mail room bin. While it may seem callous to employ such a blanket rule, it really is a critical loss-mitigation strategy for the recipients of the unsolicited scripts and pitches. Over the years, lawsuits brought by people who were convinced that a studio had stolen their idea have been brought, and sometimes won. Even the lawsuits that were dismissed in the first round of litigation cost money to defend, and since everyone wants to be in pictures, there is no shortage of potential plaintiffs (and lawyers ready to take a shot at the established industry).

An attorney or agent working on behalf of a person that wants to submit creative content for consideration provides the receiving party with a paper trail, and can act as a third party that will be able to verify the date and time something was created and submitted. That way, it is difficult for someone to claim they sent in a script to a studio twelve months before a very similar film hit theaters. If the studio has a policy that only represented projects get out of the mail room, they have their ounce of prevention that can keep them out of court.

But this state of affairs DOES NOT mean you can go to an entertainment attorney and pay them to submit your script to all of your favorite studios. First, even though the common stated policy of production companies is that you must have a lawyer (or agent) submit your script, it does not mean that a lawyer gets every script out of the basement and on to a producer's desk. Second, every script or idea that gets the attention of a producer or studio knows where it came from. In other words, if a law firm's letterhead shows up at a studio ten times a day with scripts attached, and all of those scripts are not properly formatted or even remotely good, that law firm is suspect and its reputation hurt in the eyes of the folks that make the initial choice about whether a decision-maker will see the submitted content or not.

Therefore, attorneys need to be careful about what they submit on behalf of clients. They need to see the proposed project as viable and as a good fit with companies they submit the project to. When lawyers do see a good fit for a project--with one of their existing clients, perhaps, or with a production team they just negotiated a music license with--they will generally work to make the connection. But like so many other things in life, you cannot purchase the "right place, right time" magic with a legal retainer payment. Let your entertainment attorney be one of your first creative collaborators and see where it leads.

Making Events Matter for Documentaries

2012-04-23T12:33:25Z

This weekend (on 4/20/12), Magnolia Pictures released "Marley" in theaters and through video on demand services. The film performed pretty well at the box office, at least by documentary standards ($260,000 gross on 42 screens, for an average of $6,190 per screen according to the early Box Office Mojo estimates for the weekend). Compare that to the Michigan-shot "Touchback", which had a 50-screen opening weekend (April 13-15) with a $66,998 gross for an average of $1,340 per screen, and it gives one reason to think that there may be more than hope and education to gain from well-executed theatrical distribution plans for documentary films.

Comparing a long-form narrative sports drama to a highly-anticipated documentary about one of the most beloved figures in music is definitely not an apples-to-apples exercise, but at least it gives occasion to wonder what the key to financial success for documentaries might actually be. Until "Hunger Games," Lionsgate's highest grossing project was a documentary (Michael Moore's "Fahrenheit 9/11"). Disney (through it's distribution arm Buena Vista) has done quite well with its documentary projects over the years too, with four films in the top 20 of the best-grossing documentary list.

But Marley didn't have the wide release and marketing muscle Disney lets loose for its nature films, so why did it have such a great weekend? I think it has something to do with efforts to secure strong, meaningful connections with the places where it screened--particularly outside of the NYC/LA/Chicago arthouse markets. In Grand Rapids, Wealthy Theater showed the film on Friday. In the week running up to the screening, the local connections started to come to light, and localized social media efforts made the film feel like an event. This presents a win-win for the distributors and the local exhibitors, and engaged audiences win as well.

Digital Music Royalty Dispute Settled

2012-04-13T12:37:47Z

A settlement of a long-running dispute being handled by the Copyright Royalty Board (the CRB) at the Library of Congress was announced this week, and if the proposed agreement is accepted, it stands to clear up substantial questions about royalty rates for digital music licenses. The Recording Industry Association of America, the Digital Media Association, and the National Music Publishers' Association came together and proposed a royalty rate framework that addresses five different models for delivering digital music content:

1.   Mixed service bundles
2.   Paid locker services
3.   Purchased content lockers
4.    “Limited offerings”
5.    Music bundles

It is not exactly clear if all of these services are actually available in the market right now, but the intent of the parties is to be out in front of future royalty issues. Once the agreement is made available it should be easier to match the new royalty categories to actual services, and one has to believe that the trade association members that participated in construction of the agreement had specific services in mind, whether they exist now or will emerge in the future. The proposed agreement will cover 2013-2017.

the choir has been preached to....now what?

2011-02-25T16:49:10Z

The production industry was out last night.

A town hall meeting in Livonia (and a simulcast of the event in Grand Rapids) brought out a couple of thousand folks, most of whom have benefited from the huge increase in the volume of production work that has come to the state since the production tax incentive legislation was signed into law in April, 2008.

There were great stories told, and passionate points made--mostly to crowds that overwhelmingly support the continuation of the tax incentive program that has sparked significant economic development to Michigan. The program was slated for significant changes/reductions as outlined (albeit briefly) in Governor Rick Snyder's budget proposal that the executive branch introduced last week. There are certainly questions about the program's effectiveness, but the most recent study was done by Ernst & Young, and it shows a great return on investment.

So now that the production community's support is galvanized--across the state--what is next? If the past week is any indicator, the coming weeks will certainly see extensive debate about the governor's budget. And while the production tax incentive is a huge issue, it is an issue that has to be taken in the context of some sweeping changes to how Michigan deals with taxation and economic development across the board. We're looking forward to the discussion, and to finding ways to continue sparking opportunities for our entertainment industry clients working in Michigan.

We hear each other loud and clear. Now is the time for the rest of the state to hear how a thriving production industry in Michigan can help us all.

the data makes all the difference

2011-02-01T20:15:03Z

Reading this blog post by Jason Spitz at Topspin Media got us clicking back to the discussion about the project that the Future of Music Coalition is doing to study artist revenue streams and aggregate some of the data in new and useful ways. Looking over the methodologies and structure of this study, it is clear that some very valuable work product is being generated here.

Our artist clients are engaged in the constant search for new (and robust) revenue streams, and are working hard to live the dream of eating off of what their music generates financially. To the vast majority of artists, it remains mostly that: a dream. But it's a dream that is born out of passion and art, so somehow- for a while at least- it is pursued honestly and with hard work. The same observations we have been making for years- the music business model is broken, no one knows what to do- are just boring observations now. Statements of the obvious even?

So how do we move beyond stating the obvious and get in to working towards making music work for the people that make music? One key way is to know how the money flows--and the FMC revenue project does that, but from the perspective of the artist rather than the balance sheet jumble of labels, publishers, etc. It is likely to be a very helpful study.

And for the record, we were really happy to have helped out (in small, lawyerly ways) on some of the collaborations between Topspin and Air Traffic Control last year. Forward thinking projects = fun.

production incentives and subjectivity

2010-12-09T13:18:48Z

Production tax incentive programs are definitely taking fire as we come to the close of 2010. Nevertheless, the soft money that tax incentives bring to production budgets continue to help get projects that otherwise might languish in development limbo off the ground. As many states and jurisdictions (including our home base, Michigan) debate the sustainability of production incentive programs, there are still a lot of options for producers seeking government help to get from limbo to lensing.

One of the challenges that face producers seeking tax credit support is that the application and administrative processes for the programs vary widely. It takes some concerted effort to evaluate not only the bottom line benefits of each jurisdiction's program, but all of the nuances of participating in those programs as well. And then there are the true variables: the subjective criteria in each of the programs that can be impossible to predict.

In Michigan, projects have been denied tax credits because of concerns about the content of submitted scripts and because the Michigan Film Office determined that there were not sufficient economic development benefits to the state that would result from bringing the denied projects to the state. Michigan is not alone. This week we learned that Robert Rodriguez's most recent release, Machete, was denied incentive support in Texas because it portrayed Texas in a negative light.

There really is no escaping subjective criteria in the administration of the production incentive programs. The key to successful utilization of incentive financing is working with professionals that have frequent interactions with the administrators of the programs in the jurisdictions that productions are considering. While no one can predict an outcome when it comes to subjective criteria, it helps to know what has happened in the past and to have some insight into how decision makers approach each project as the applications come in.

Fighting to keep runaway productions from running away....

2010-10-27T13:32:57Z

So The Hobbit films are staying in New Zealand.... Without knowing the inside details of how this all played out, this was still a very interesting journey.

Set aside, for now at least, the long saga of how Peter Jackson ended up as the eventual (and logical!) helmsman for these films. And even set aside the guilds' boycott of the project that was only recently called off. What is really interesting to me here are the events that transpired to keep New Zealand as the location of these films.

The thumbnail of the story is that New Line and its parent, Warner Bros., threatened to move the production of the films as a result of fracas surrounding the labor issues. Then, people rallied around the cause (check out the promotional trailer for the demonstrations), and protested in the streets when WB execs were in the country for meetings to convince the New Zealand government and the producers to keep the films in New Zealand.

Now, it's pretty clear that the studio was just doing what studios do: negotiating the best deal for the production of what promise to be huge films for them. So, what can we take away from this? A few things:

1. Productions of major motion pictures are major economic events, and around the world, they inspire public and political action to attract and retain them.

2. Studios are always going to work for the best deal on physical production to maximize returns on investment.

3. Labor issues are a critically important factor in steering production work.

4. Currency fluctuations and government incentives/subsidies are (still) critically important factors in steering production work.

As things settling down with the planning of these films, we can now look forward to them taking shape as Jackson and his team work to dazzle the world with their movie magic.

Featured Venture: Dear New Orleans

2010-08-31T12:11:57Z

In late August, 2005, nature dealt a striking blow against the city of New Orleans in the form of a storm called Hurricane Katrina. Debate over whether the chaos that ensued was the result of a freak/unique natural disaster or the failure of systems designed to protect the population from just such occurrences still rages on. No matter where people come out on that question, one thing is clear: one of America's urban jewels was--and in some ways, still is-- devastated by the storm.

New Orleans is a music town, and in the years since Katrina, musicians have rallied around their brothers and sisters, musician and non-musician alike, to help with the recovery. Air Traffic Control Education Fund, a national non-profit, has collaborated with the Future of Music Coalition to facilitate directed assistance to the people of New Orleans by musicians in the years since Katrina.

Their efforts have culminated in this project, Dear New Orleans - A Benefit Album, that was released last week. Learn more about what artists have been doing to help in New Orleans by checking it out. And get a great record while you're at it. The work isn't done, but after five years, it helps to slow down and enjoy the music that helps tie New Orleans to the rest of America and the world.