Film and Video


Movie Making in Michigan: A Lawyer’s Guide

I'm speaking today as part of this seminar on movie making in Michigan presented by the Institute of Continuing Legal Education and cosponsored by the Arts, Communications, Entertainment & Sports Section of the State Bar of Michigan.  Here's a breakdown of the program: Date and Time: 06/03/10, 1:30pm-4:30pm Location: The Inn at St. John's, Plymouth Program: 1:30pm-2:15pm Negotiating Movie Contracts union contracts non-union contracts John M. Kamins, Foster Swift Collins & Smith PC, Farmington Hills Charles T. Oxender, Miller Canfield Paddock and Stone PLC, Detroit Shari Friedman Lesnick, Norman Yatooma & Associates, Birmingham 2:15pm-3:00pm Serving as General Counsel for a Film Project intellectual property issues obtaining permits, closing streets, finding locations Richard A. Herman, Richard A. Herman PC, Bingham Farms 3:15pm-3:45pm Tax Credits and Incentives for Michigan Movie Makers movie-related tax credits and incentives working with the film office Howard Hertz, Hertz Schram PC, Bloomfield Hills Julie B. May, Dearborn 3:45pm-4:15pm Real Estate Issues for Movie Makers landlord, tenant, and location issues working with municipalities, permitting, and licensing Pamela Osborne, City of Detroit - City Council, City of Detroit City Council - Research & Analysis Division, Detroit Glen M. Zatz, Sr. Vice President and Associate General Counsel, Comerica Bank, Detroit 4:15pm-4:30pm Questions and Answers


The State of Michigan has a $2.8 billion budget gap and unless lawmakers can agree on a budget by the end of the day today (Wednesday) the state will shut down.  Under these circumstances, many are questioning the prudence of continuing Michigan’s film tax incentive program, which is the most generous state program of its kind offering up to 42% reimbursement for production costs.  According to the Senate Fiscal Agency, the program is expected to cost the state $150 million next year.  But focusing merely on the costs is unhelpful.  The real question is: what are we getting for our money? That question, unfortunately, is a little more difficult to answer but one that the Michigan Film Office tried to address in an Economic Impact Study it released last April – the one-year anniversary of the enactment of the program.  The study describes the effect of the program on Michigan-based productions and makes some projections for the future.  According to the study, during the first year of the program, 32 Michigan-based film productions were completed as opposed to only two in 2007.  Those 32 productions accounted for just over $65 million in direct spending in the state as compared with approximately $2 million in 2007.  Applying a multiplier to the dollars spent in Michigan, the authors estimated that the overall economic benefit to the State related to the completed films was close to $94 million.  The report also states that these productions employed 2,763 Michigan residents. Based on other state programs, the study projects ...


Legal Mistakes of Filmmakers: Fair Use

Last weekend, I participated in a discussion on the top ten legal mistakes of filmmakers (and how to avoid them) at CBS Radio's Michigan Makes Movies Expo.  The event, and the lecture, were both well attended. One mistake that made our top ten list had to do with misconceptions about the Fair Use Doctrine in copyright law.  Here's some of what was discussed: Background.  Fair use is a doctrine in United States copyright law, incorporated in Section 107 of the Copyright Act, which allows limited use of copyrighted material without requiring permission from the copyright owner, such as use for scholarship or review or criticism or parody or news reporting (to name a few).  In determining whether or not the use of  copyrighted material without permission is a fair use, courts consider a four-factor balancing test: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (in the last fifteen years, a key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative); (2) the nature of the copyrighted work, such as whether it is fictional or non-fictional; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (in general, the less that is used in relation to the whole); and (4) the effect of the use upon the potential market for or value of the copyrighted work.  What could be simpler?  The truth is that ...


Safford & Baker in the News

Yours truly is quoted in this Oakland County Legal News article on law firms hoping to capitalize on the growing movie industry in Michigan.  I can't say all of the quotes are entirely accurate but hopefully people will get the idea.


I'll be speaking on this topic at the Michigan Makes Movies Expo, previously written about here, on Sunday, July 12th at the Rock Financial Showplace from 11:00 a.m. to 12:00 p.m.  Here's the write-up of the session: You've put your blood, sweat, and tears into your project, so don't jeopardize your hard work by making very common legal mistakes - mistakes that are oftentimes avoidable.  Presented by the Arts, Communications, Entertainment & Sports (ACES) Section of the State Bar of Michigan, in this session the conscientious filmmaker will learn how to avoid common pitfalls in the areas of contracts, artist collaborations, intellectual property protection, releases and waivers, fair use and parodies, fundraising and securities compliance, distribution, entity formation, and third-party rights.  These issues and more will be covered by ACES members and local business and entertainment lawyers, Safford & Baker PLLC, and Richard Herman, Richard Herman, P.C.  Whether you're new to the filmmaking business or an old veteran, you need to understand your legal rights and responsibilities as a filmmaker - don't learn them the hard way. A list of the other session topics can be found here. Hope to see you there.


Michigan Makes Movies Expo

CBS Radio Detroit has launched a new website and will present a conference this summer in an effort to link WWJ Newsradio 950, and the other Detroit CBS radio stations, with Michigan's burgeoning film business.  The conference, the "Michigan Makes Movies Expo", will be on Sunday, July 12th at the Rock Financial Showplace from 10 a.m. to 6 p.m.  The event will, of course, include the typical "expo" area -- with booths and information on the Michigan film industry -- but will also include 35 different breakout sessions for people to choose from throughout the day.   The breakout sessions will be conducted by actors, producers, casting agents, and other industry professionals covering such topics as how to get extra work, how to get your kid in pictures, TV and film production, independent filmmaking, script writing, and more. The Arts, Communications, Entertainment & Sports Law Section of the State Bar of Michigan (otherwise known as ACES, and of which I am Chair this year) has been asked to conduct one or two panels on legal topics.  Stay tuned for more details. Tickets will be available through the website in mid June.  If you are an industry professional and are interested in conducting a session or purchasing an expo booth, please e-mail Rebecca Falk at


With the emergence of Michigan's burgeoning film industry comes a new wave of so-called talent agents and managers in the state.  In the entertainment industry, the role of a "talent agent" (or "agent") is to get his artist-client work, like a personnel agency.  The role of a "manager" (or "personal manager" or "business manager") is restricted to only giving business and career advice.  The reason for this distinction is that, in California and New York, agents must be licensed and are heavily regulated, whereas managers need not be licensed and are largely unregulated.  Persons acting as legitimate managers in these states, in order to avoid licensing and regulation, are very careful not to procure employment for their clients, even if such procurement were merely incidental to their overall management services.  Managers acting as unlicensed agents in California and New York risk having their contracts voided and, thus, losing all their commissions. The California and New York regulatory scheme for agents and managers is so well-known in the industry that many Michigan "managers" may be under the belief that they too can avoid state licensing laws by limiting their activities to business and career advice.  They would be wrong.  Michigan's Occupational Code, MCL 339.101 et seq., recognizes two types of "personnel agencies".  Type "A" agencies, which are employment agencies that place clients in direct contact with employers (i.e., agents), and Type "B" agencies, which are more in the nature of consulting agencies and assist clients in making basic career decisions (i.e., managers).  Both types require a license in ...


Just a friendly reminder of a couple of upcoming events this week.  I'll be on the "Fair Use" panel.  I hope you can make it. FREE PANEL DISCUSSIONS The Arts, Communications, Entertainment & Sports ("ACES") Law Section of the State Bar of Michigan is co-hosting with the Ann Arbor Film Festival ("AAFF") two free educational panels during the 47th Ann Arbor Film Festival. The "Michigan in Motion" panel discussion is taking place on Wednesday, March 25, 2009, from 1 - 2:30 p.m. at the WORK Gallery in Ann Arbor.  The new film tax incentives in Michigan created a national buzz in the past year, with Hollywood film projects receiving much of the attention.  But what do the film tax incentives mean for the independent filmmaker and new media artist?  Who qualifies, and what projects benefit most?  Are the incentives working as intended and what's their future?  This panel serves to provide an insider's guide for independent filmmakers from several of Michigan's experts in the field, including tax specialist Julie May and attorneys and ACES members Howard Hertz and Ethan Bordman. The "Remixing the Rules" panel discussion is taking place on Thursday, March 26, 2009, from 1 - 2:30 p.m. also at the WORK Gallery in Ann Arbor.  One of the most critical and ongoing debates in the global entertainment industry is the battle over fair use rights and copyright law in the arts.  Whether music, film, new media or beyond, this issue does not just affect these industries, ...


The so-called "notice-and-takedown" procedure in the Digital Millennium Copyright Act of 1998 (the "DMCA") - previously referenced here and here - provides copyright holders with the means to remove allegedly infringing material from websites.  When users post such material, the copyright holder provides notice to the website operator, and the operator is charged with the taking it down.  Increasingly, however, the users posting these materials are fighting back when takedown notices are used illegally. In a recent case, the animal rights group Showing Animals Respect & Kindness (aka SHARK) shot video footage of a rodeo which depicted, according to SHARK, animal abuse.  SHARK then posted the footage to its YouTube channel accompanied with provocative commentary and as part of a fund raising drive.  The Professional Rodeo Cowboys Association, the organizer of the rodeo, sent YouTube a DMCA takedown notice claiming that the clips infringed their copyright because SHARK was not authorized to shoot the event.  There is one problem with that claim: live sporting events, such as rodeos, are not copyrightable.  SHARK complained, YouTube put its channel back up, and then SHARK sued the Rodeo Association for abuse of the DMCA.  In the end, the Association agreed to pay SHARK $25,000 for the wrongful takedown notice.


Remixing the Rules

This YouTube video is making its way through the blogosphere.  It is a very impressive mash-up of homemade music clips, each of which the author carefully credits.  This video is a terrific illustration of the mash-up art movement -- a movement that is frequently at odds with our current copyright policy. If you are interested in this topic, myself and others will be addressed it as part of the "Remixing the Rules" panel discussion taking place on Thursday, March 26, 2009, from 1 - 2:30 p.m. at the WORK Gallery in Ann Arbor.