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Boilerplate Clauses

Lesson 8 from: Copyright, Trademark, and Intellectual Property for Filmmakers

Rachel Rodgers

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Lesson Info

8. Boilerplate Clauses

Lesson Info

Boilerplate Clauses

So let's talk about something else that should be in your contracts and this you might also see in other people's contracts it's called boilerplate and it's all that sort of legalese that at the end of a contract this stuff is really actually important and it protects a lot of your rights so don't just delete it I have a couple of you know clients that have come to me and they had a contract um and maybe they got it from a reliable source or whatever but it's a pretty decent contract but then they deleted all the boiler plate so like the last one or two pages of the contract that has all of these clauses in there that maybe you don't understand you think it's not important to you delete it do not do that okay these clauses actually really protect your rights as a business owner and when you're a solo preneurs or small business you've got to protect yourself you can't leave yourself open to major issues because that can totally bankrupt your business and you know cause you to shut down ...

right close your doors it's much easier for a bigger company to handle litigation that it is for a small business and so that's why everything I'm teaching you today is all about being preventative we're going to take steps ahead of time before there's any legal issues to protect yourself and your business and your intellectual property if you try to do it after the fact, then it's going to cost you a whole hell of a lot money aa lot more money because that's called litigation okay? And litigation is never cheap under any circumstances so let's look at some of the boiler plate that you'd want to include in your contract limitation of liabilities clause is one thing that you'd want to include this limit the amount of liability you'd have under the agreement so let's say you have a studio and you're filming in your studio and you're filming of client and you tell them to do certain things in front of the camera and they do them and they trip and fall and break their neck you know, maybe that's too dramatic let's say they break their ankles so they break their ankle and they want to sue you. This limitation of liability is klaus will save the day I mean insurance also will save the day so have insurance if you have a physical studio but the limitations of liabilities claws we'll make it so that there's a limit to how much you'd have to pay. You know, if you made a mistake and something happened to them so what's often used is the value of the contract to say you're being paid five thousand dollars to create a video for the client so the value of the contract is maybe five thousand dollars you might want to limit your liability to that five thousand so basically you're in a situation where you refund the client their money and you move on right? That settles the matter and you khun you know, move on that's that's why it's so important because it can limit how much they consume you for another important causes a recovery of litigation expenses so this will really be really helpful if there's a legal issue that arises and you know you've got a su a client because they didn't pay you or because they misuse europe, you got to take them to court you want attorneysfees included, okay, because going to court is expensive and paying a lawyer tens of thousands of dollars to litigate a case for you is a lot of money if you have a clause like this, then you khun you know, know that if you win that lawsuit, you'll get those attorneys fees back, so if you've got to put out twenty thousand dollars to see susan one, you know that you'll get that twenty thousand dollars in attorneys fees back if you win. So independent contractors is just making it clear that you're an independent contractor of the client you're not an employee very important for you as a filmmaker, right? Because we saw what work for hire looks like, so you don't want to be in a situation where you know you don't think you're an employee but legally according to state employment law they find you to be an employee because if you are then that means the work that you created for that client they own it so this is an important clause for filmmakers so make sure you have an independent contractor language and there let them know that you're freelance or your contractor you're not an employee of the person the client that you're working with and then the warranties is just sort of what I call the pinky swear clause that's essentially just saying that you guarantee that you are a professional filmmaker and that it will be you know the resulting film will be of a professional quality the services will be provided in a professional manner that's all you want warranty you want to be throwing in lots of warranties because that's making guarantees on do you want to limit the amount of guarantees that you are making in your contract and then lastly thie entire agreement modifications and waiver clause all that's doing is saying hey this agreement has to be in writing so if at some point you have a discussion with the client and they say hey I want to change this or that I want to do this or that can we make this change even if you say yes doesn't matter not legally binding unless it's in the actual agreement that's what that clause does ok and that's what they want if you want to make a change to your client service agreement, you wanted to be in writing you wanted to be very clear that the parties are agreeing to this change and then one last thing on boilerplate that I want to make sure you know about is the governing law than you in mediation clause. Now, if you're a filmmaker, you're most likely going all over the country or the world filming, right? Not all filmmakers are staying in the same place at all times you're traveling from state to state or even country to country. So then how do you know which law which states law apply? You know, if there's an issue, how do you protect yourself from bring brought into court in texas or any random state that you might find yourself in that you don't actually live or work in? Usually this is how you do it with the governing law and venue clause, so those pieces are basically saying that this agreement shall be construed in accordance with and governed by the laws of the state of whatever state you live in. Okay, so you want to make it your state it's, easier for you to defend yourself in your own state than have to go all over the world and potentially be brought to court in all these different places and then you also want to go as far as saying the exclusive venue for any court proceeding based on or rising out of this agreement shall be and then you include the same state and you can even include the county okay, so that you're on lee being sued in the court that's closest to your home or that's closest to your place of business. The other part of this clause is dealing with mediation. Mediation is where you have a neutral party a sit down with both parties who are having the dispute and you have a discussion and the mediators job is sort of a break to create a meeting of the minds to create a situation where you find a way to move on right find a way to resolve the conflict. Mediation can be very effective powerful tool for small businesses especially in a creative context as well because it allows you to come up with creative solutions to the problem it's in court the only thing that can be awarded his money when you're in mediation you know there might be something that you have that the client wants that would resolve the dispute other than money and so that's a great way for you to solve those problems. Also, mediation is way cheaper to hire a mediator maybe it's you know anywhere between seven hundred fifty eight of fifteen hundred dollars depending on which organization you use to create a you know, to have a mediation set up and then usually split both you know, parties split the fees for the mediation so it's not going to cost you thousands of dollars like a lawsuit will and this is a way for you to preserve the relationship with your client where maybe there's a possibility to keep working together or to keep getting referral business from their client because it actually does resolve disputes way better way to resolve legal issues than going to court okay, so I wanted you to know about that make sure you always have a mediation clause in your in your contracts I do this for every single one of my clients it's very, very rare that I draft a contract that doesn't have a mediation clause in it because it's, just so so important to provide realistic ways for you to resolve disputes that don't cost you thousands of dollars, okay? So lastly, the other contract thing that I want to cover real quick is a participant agreement. Now this is a legal document that gets consent from everyone appearing in front of your camera that they are not going to sue you for being in the film, ok, so this is one of the releases that you'll you'll need to get it's usually a standard you know, contract, create a participant agreement for your business and have everyone that appears in front of your camera sign it so whether you're interviewing someone in a documentary setting or you know even with your clients have your client sign a participant agreement because like we said, if you're going to reserve the right to the footage and be able tio use the footage and other context, you need to have that person's permission that they're waiving any rights that they may you know, try to assert later and they're waiving any claims that they would have against you for violating their privacy rights. Okay, so that's what this is dealing with so just what you need to know about a participant agreement is make sure you get get one every single time someone is appearing in front of your camera and even if it's just audio I've heard a lot about you know, in an audio setting people think oh, a release isn't necessary actually it isthe a release is absolutely necessary at all times just get it if you can if you can't, then you know there are some limitations to how you can probably use it how you can use that footage so just get a participant agreement whenever humanly possible, ok? And so lastly, let's just talk real quick about how you're going to, you know, incorporate this into your business and then we have an awesome guests that we're going to talk to you so this picture is just denoting electronic signatures. Elektronik signatures are your friend. They're completely legit, just like using pen to paper. And so you can use a service like hello, sign or echo sign where you can load in your client service agreement. You can also load in your participant agreement and have your contract signed electronically by all of your clients. That's a way to make it really practical and easy just to get it done. Okay, so you don't skip it. So you don't wait till you see the person in person just make it really, really easy, especially for a participant agreement. If you've got people walking by on a film set, for example, you might want to just have, you know, your production assistant or somebody there to run up to them and say, here, you know, here's our participant agreement. We want your permission to, you know, have you appear in this video? Have them sign it right there electronically on your ipad boom. Done. Okay, so that's just a way for you to make this really practical and applicable in your business.

Class Materials

bonus material with purchase

Rachel Rodgers - Copyright Cheat Sheet.pdf
Rachel Rodgers - CreativeLive Handout.pdf
Rachel Rodgers - Filmmaker Clauses.docx

Ratings and Reviews

Robert W. Daniel

This is HOT! This is a must see course for anyone who is producing or filming an independent film.

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