When you’re first starting a Film, TV or Online/Internet (i.e. YouTube) project, it is important to ensure that a content creator has covered all the legal bases. A pre-production checklist will help a producer ensure they have all their ducks in a row.
It is important to get proper legal advice to get your film company structured properly as well as ensuring that all entertainment agreements are drafted properly to optimize tax credits and intellectual property etc. A producer is on their own with financing and development a property before a distributor or broadcaster picks it up and give them money to help produce it.
Normally, development costs can range from $5,000 or more. This is normally out of pocket and something you must be willing to invest in with your own money. If you really believe in the project, then hopefully, you will be able to recoup this initial investment at a later time. This article will provide you with the essential checklist for pre-production, development and production to help you determine what legal services you need for your next Film, TV or Online/Internet project.
Development, Production & Pre-Production Checklist
Some of the typical legal advice and legal services a production lawyer offers in relation your film and television production include:
Pre-Production Checklist
☐ Structuring your production company to ensure it meets all legal requirements to take advantage of tax credits and
other financings.
☐Incorporate and organize a single purpose production company (ensure structure meets Canadian tax credit requirements for Canadian citizenship or permanent resident etc.)
☐Review and finalize all agreements with the joint venture, co-producers
☐ Reviewing and drafting co-development and/or provincial co-production agreement (if required)
☐ Legal Advice relating to CTF and other funding applications
☐ Preparation of private investor and private lender agreements
☐ The pre-production checklist should also include: finalizing budget, hiring production staff, approach talent, purchase production insurance, secure locations and create a list on any clearances and schedule production.
See a detailed pre-production checklist HERE.
Development Checklist
☐ Assistance with securing rights in underlying materials (such as books or existing scripts) including:
- initial chain of title review and preparation of required additional documents in securing all rights to the underlying properties
- Circulate chain of title documents including legal opinion to investors, distributors, broadcasters, financiers, lenders, insurers, completion guarantors etc.
- obtain and review title and copyright reports and a title opinion (and ensure they are not more than 60 to 90 days old from the previous report).
- Option and literary purchase/life story
- if a work is obtained under an option agreement, ensure that the option is exercised within the time limits of the option agreements and paid for. Normally, an option agreement is exercised prior to principal photography.
- Publisher releases
- Writer Agreements
- obtain the executed certificates of authorship/employment of distributor or licensee requires that writer’s agreement, payment and credit to a writer has been finalized.
- Notify the Writers Guild of Canada (WGC) of the final writing credits for any script writing agreements that are subject to the WGC Independent Production Agreement
- Calculate the production fee payable to the writer(s) upon start of principal photography.
- Assistance with securing rights to further development (WGC Writer agreement and WGC Story Editor Agreement)
- obtain executed releases from prior writers if the writer is a member of the WGC and has been replaced unless the writing agreements provide for otherwise.
- obtain the executed certificates of authorship/employment of distributor or licensee requires that writer’s agreement, payment and credit to a writer has been finalized.
- Non-Guild Agreements
- Obtain signed certificates of employment from staff writers and researchers ensuring the were hired as employee and all copyright has been assigned to the production company
- Ensure all rights, approval consents are assigned to the production company
☐ Review all Broadcaster Development Agreements or Institutional Development Agreements and other pre-sale distributor licences
☐ Protection of intellectual property including copyright registrations in underlying script and the picture itself (including any related legal advice)
☐Insurance
- Apply for insurance coverage for:
- producer’s errors and omissions liability insurance
- entertainment package insurance
- general liability insurance
- workers’ compensation insurance
- other coverage for unusual risks such as stunts etc.
- add any additional insured or any additional named insured under any insurance policy
- Circulate copies of insurance binder notes to the insured, additional insured and named insured.
- Arrange for cast to undergo an insurance medical exam and forward results the to insurer when requesting coverage.
- Insurance cameras and equipment and test prior to use.
☐Immigration
- Arrange immigration work permits for foreign cast and crew working in Canada.
Production Checklist
Organize Production’s Bank Account, Employees, Payroll and Incorporation
☐Open a production company bank account
☐Perform a credit check and corporate and bankruptcy status check on the co-producers
☐Register the production company as an employer with the Canada Revenue Agency
☐Enter into an agreement with a payroll service to administer the payroll for the production
☐Register the production company as a corporation in each province where it will carry on business to leverage tax credits
Co-Production & Co-Venture Agreements
☐If it’s an international co-production treaty, ensure that each entity has applied to their own national authority such as Telefilm Canada for certification as a co-production prior to at least six weeks in advance of principal photography.
☐Register the production company for provincial sales tax and obtain exemption certificates which exempt the production company from paying provincial sales tax on purchases.
Tax Credits
☐Review all federal and provincial tax credit eligibility
☐Apply for Part A of the federal tax credit and provincial tax credits
Funding
☐Review all possible sources of funding such as the Canada Media Fund, Telefilm Canada etc.
Errors and Omissions
☐ Errors and Omissions Application Review (including insurance policy) and Clearance Procedure Review including obtaining intellectual property reports (Copyright search reports, trademark search reports, character search report, title search report and entertainment search report)
You can see some sample errors and omissions agreements from The Travelers Company and HERE.
Implement any risk management especially for documentaries and dramas that are based in whole or in part upon actual persons or events.
Production Financing
Investor Agreements or Other Institutional Lending
☐ Review all Institutional Investment Agreements and provide legal advice (includes Canada Media Fund, Telefilm Canada, gap financing insurance, banks etc.)
☐Review all conditions for advances under the above agreements.
Broadcast and Distribution Agreements
☐ Negotiating and reviewing all Broadcaster Licence Agreements and Distribution Agreements & Distribution & Sales Agency Agreements
Bank Financing
☐ Assistance with closing of Bank Interim Financing with various banks and or other institutions, including modifications to support other secured lenders (including rendering of corporate legal opinions), including reviewing the following agreements:
- Bank Loan Agreement and other documentation (for interim financing)
- Inter-Creditor Agreement
- Corporate Searches for Bank Closing
- Opinion Letter re: chain of title
- Opinion letter re: execution of documents
- Collection Agreement
Above-the-Line Talent Agreements
☐ Modification of and/or preparation and drafting above-the-line talent agreements and guild set up, including:
- Producer, co-producer, line producer and executive producer Agreements
- Executive Producer Agreement
- Director Agreement (DGC or non-guild)
- Principal Performer Agreements (ACTRA or non-guild) or other performers paid above guild scale
- Life Story/publicity Releases if production based on a true story
- Other Key Crew agreement such as editor, director of photography, composer or others
Below-the Line Deal Memos
☐ Modification of and/or preparation and drafting of below-the-line deal memo templates memo templates and review;
- Appearance Releases/Day Player Agreement
- Extras Release
- Crew Agreement (Employee)
- Crew Agreement (Contractor) for both employees and independent contractors
- Crew Guild Adherence Agreement
- Cast agreements
- Extras releases
- Location agreements
- Product Use licences
☐ Preparation of deferral agreement template
WGC, ACTRA, DGC, IATSE and AFM Guild Compliance
- Comply with all agreements and requirements of the above guilds if guild or union labour is used including:
- letter of adherence to the applicable guild or union agreements between production company and guild
- Include any variation to the standard guild agreement
- Post security deposits and other security agreements with the applicable guilds and unions
Completion Agreement/Bond
☐ Assistance with completion of completion agreement and bond (if required and applicable), including cut-through in respect of interim financing
☐Finalize all agreements and other documentation required by the Completion Guarantor.
☐Make any escrow arrangements if production funds are to be held in escrow rather than a completion guarantee.
☐Finalize any agreements and documentation required by the guarantee or escrow with the broadcasters, distributors, investors, lenders and other financiers and beneficiaries.
☐ Prepare weekly production and cost reports to distribute to all required parties such as the completion guarantor and all financiers and interested parties
Other Production Agreements
☐ Reviewing and drafting all other standard production-related agreements such as:
- location agreements
- sponsorship agency agreement/product placement agreements
- other third party product clearances
- stock footage licences
- website agreements
- laboratory agreements
- Post-production editing agreements
- Sound facilities agreements
- Equipment and other suppliers
Music Clearances & Music Rights
☐ Review of and preparation of music and assistance with legal advice on clearing all music rights and obtaining rights from musicians composers, record companies and music publishers including all related music licenses and music/composer agreements
- music production and music publishing agreements
- song, synchronization and master use licences
Film Clips & Photographs
- obtain film clips, footage and photograph releases
- production office and studio lease agreement
Intellectual Property Rights – Copyright & Trademark Applications
☐ Assistance with the preparation and drafting of trade-mark application for the title of the project and related legal advice.
Entertainment Accounting & Financing
☐ You will also need your lawyer to coordinate with a film and television accountant to help with:
- budgets and financing structures
- production accounting
- tax credit opinion letters for financiers and/or interim financiers
- closing interim financing facility
- tax credit applications
- legal advice in drafting cast/crew agreements to access tax credits
- file applications for the CRTC “Canadian Program” (i.e. Canadian content) status
- File applications for International treaty or interprovincial co-productions with Telefilm or provincial regulatory agencies
- Canadian guild residual or royalty reports
