Do i need an entertainment lawyer?
You are a local movie producer. You receive a “contract of intent” from a foreign-based film production company wanting you to act as its South African producer for the filming of its SA segment of the movie. Agreements are submitted to you that speak of several contractually binding clauses governed by numerous foreign laws and statutes of which you have no idea and never heard of before.
Perhaps you are a talented author who has just completed writing a new novel and believe that it has the potential to be a runaway success. You want to showcase the content thereof to certain publishing houses to gauge interest, but don’t want to necessarily give them the whole manuscript for fear that your story may be stolen. How can go about showing your manuscript to the publishing houses and, at the same time, protect your work?
1. Hesitant to sign
There are also several financial obligations tied to the agreement and imperatives that your production company put up “closed guarantees” as well as unconditional warranties for the benefit of the foreign based film production company and its funding investor. The offer seems too good to turn down, but you are hesitant to sign or agree to the terms of the contract of intent. Who do you approach for help? Who would best be able to understand and negotiate better terms that favor your company?
Suppose, for example, your company holds the exclusive rights to the marketing and management of an international live performance show. The terms require of you to manage the events set-up and place control on sponsorship rights within the venue. Your company also holds rights for the exclusive marketing of merchandising opportunities that flow from the show.
It also seems that numerous intellectual property rights are not protected under SA law and before you can proceed with the contract, you need to give the foreign based company who owns the show the assurances of your ability to manage the event and consequent protection of its rights. Where do you start? Who can you talk to?
What happens, for example, if you produce a song or create a television show or write a book only to find that your work is being challenged by another person accusing you of stealing their idea or copying their work? Perhaps you are accused of “passing off” you work as that of another person or being involved in a form of unlawful competition. You are faced with High Court interdicts and claims for thousands of rands in damages and compensation! Who do you turn to for help?
2. Enter the entertainment lawyer
Enter the entertainment lawyer. The phenomenal and continuing growth of the entertainment industry is in desperate need of legal practitioners who specialise in the area of entertainment law. As the entertainment industry becomes more complex and with it the need to understand and manage complex relationships and commercial obligations, so the need has developed for specialist service providers to assist entertainers, artists, sports stars and various entertainment companies navigate the growing commercial complexity of their business and business relationships.
Entertainment law is a fast growing and specialist area of legal practice. The entertainment lawyer is not an average general legal practitioner (found in most law firms in South Africa) but rather a lawyer that devotes his practice of law to the understanding of the complex legal and business requirements associated with entertainment and the entertainment industry. This involves expertise in matters of:
• Contract law
• Intellectual property Law ( trademarks, copyright,etc)
• Labour law
• Delictual law (law of damages)
• Competition law (unlawful competition, including Passing Off)
• Constitutional law (Bill of Rights)
• Tax law
• International law
Entertainment lawyers differ from the general attorney in that they have not only developed specialist knowledge of entertainment law, but have also developed unique relationships with many of the leading entertainment companies and influential people in the industry.
3. Resource and asset
These specialist lawyers are a useful resource and asset to the entertainment client as they are usually positioned to make certain useful introductions to the client, for example as between as film producer and a production finance investor.
Entertainment lawyers can also guide clients by pointing out who to network with or who to do business with and which companies or individuals are not worth considering given their relative unknown “status’ in the industry. Entertainment lawyers are also strategic negotiators and often interact with industry role players such as investors, financiers, broadcasters, media, celebrities and sports stars when negotiating deals or agreeing the terms of a contract.
Relationships between entertainment lawyers and clients are not only limited to SA and many such lawyers have useful business connections and relationships with international clients within the international entertainment sector that may be useful to you, the SA client.
It is, unfortunately, a fact of life that entertainers find themselves facing claims of dispute or wishing to protect their rights and interests by way of litigation. Entertainment litigation often involves complex legal issues and, in some cases, may involve complex questions of national and international law. Entertainment lawyers are skilled advocates and will have the unique expertise and advocacy skills to assist you to protect your rights and, where necessary, defend you in matters of civil litigation claims.
4. Where can you find them?
So, when do you need an entertainment lawyer and where can you find them? Well, most people believe that you only approach a lawyer when you are in trouble; that you or your agent or company has enough skill and expertise to manage your own negotiation and concluding of contracts without the need of having to incur the cost of a lawyer. On occasion that may be true, but as the industry grows and as we immerse ourselves into the international entertainment arena, issues of law and compliance become critical to ensuring that you, as entertainer or management company or entertainment business owner, minimise your risk by employing a specialist professional.
Can you use any lawyer, even perhaps your family lawyer? Possibly, but if that lawyer is not practicing his calling as an entertainment lawyer, he would be ethically obliged to tell you so and, where he can refer you to someone with more knowledge and experience than he has, to do so as to ensure that you get the best representation.
Not to do so places both the attorney and the client in a very precarious position (The client may have a professional negligence claim against the lawyer and his or her law firm where the advice and service has caused him or her harm. The client may suffer damages and even face the threat of sequestration or liquidation due to him or her relying on advice of a non-specialist entertainment lawyer)
If you employ the services of an entertainment lawyer, it doesn’t have to cost you an arm or a leg. Most entertainment lawyers will agree on a fee structure that meets both your needs and requirements. It’s even possible to have an entertainment lawyer contract to you on the basis of a retainer contract and, in some cases, a contingency agreement where the lawyer gets paid if he is successful with the work he must do for you.
5. Finding the right one
So, how do you know if you have found the right entertainment lawyer?
Well, ask him or her about their experience and training. Establish if they have attended special courses on entertainment law and, in particular, which areas of entertainment law they specialise: is it music law, television and broadcasting law, events management or general entertainment law? Do they belong to any known associations of the entertainment industry and do they contribute to the advancement of the industry through regular articles, workshops and presentations? Establish from them who their client base consists of and ask them for client referrals so you can phone and gauge for yourself their value and worth.
Importantly, make sure that the entertainment lawyer you employ is passionate about what he or she does and the field of law he or she practices in. Passion and dedication, above all else, is the hall mark of a specialist entertainment lawyer.