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December 8, 2023

Cracking the Code of Film Law: Mark Litwak on Hollywood’s Legal Landscape

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Show notes

0:00  

Welcome to another episode of On Production presented by Wrapbook. Our guest today is a powerhouse in the entertainment industry, Mark Litwak. Mark is an esteemed entertainment attorney, a producer's representative, author, educator and expert witness. His law firm based in Los Angeles deals with copyright, trademark, and multimedia law among other fields. He's been involved in over 200 feature films, numerous TV and new media series, and he's an adjunct professor at the USC Gould School of Law. We're going to explore the legal landscape of the entertainment industry, as well as Mark's unique journey from law to showbiz. Mark, welcome to the show.

0:39  

Thank you very much, Cameron.

0:40  

The first thing I'd love to know, Mark, is how did you transition from studying law to specializing in entertainment law?

0:47  

It's not a path that I would necessarily recommend to anyone. And it wasn't really intentional. But I went, I grew up in New York, and I went to college and graduate school in New York. And then I went to law school in San Diego, University of San Diego. And I didn't it didn't offer it. And I didn't take any entertainment law classes in law school. By then I after graduation, I had been working as an assistant in the district attorney's office and and then after graduate graduation, I moved back to New York and landed in Albany, New York, where I ran a public interest organization, called Nyberg out of Albany, and I was a regional director for that organization for about three years. And then I got offered the opportunity to write a book about the movie industry. So I moved to LA. And I spent about three years writing a book for William Morrow about the movie industry called real power. And essentially, that was my education in the film business. Because I didn't, I didn't really study film, or the movie business in college or graduate school or law school. So I wrote the book. And then I became a television producer for a company called Marble Arch. And I became a news journalist for a show called new scope, which had syndicated news things. And then I became a law professor at the University of West Los Angeles. And I started building up a private practice on my own on the site. And since then, I taught for about 20 years at UCLA. Currently, I think this is, I think, I've been teaching at USC Law School for the past eight years. And I've taught at Loyola and a couple other places as well. So, a long and convoluted route that wasn't really planned.

2:48  

That sounds like it matches many people's career paths into the entertainment industry. You know, I know, certainly, it aligns with my own kind of experience getting into entertainment, payroll, and entertainment technology. Super interesting that the book, and thinking about and researching and then writing about the industry kind of was the path that ultimately had this massive impact on your career, and, and ultimately, a lot of people's productions of yours as well. I'm curious, you know, when it comes to the type of law that you practice on behalf of producers, like can you elaborate on your role both as a producer yourself, and then as a producer's representative of how that integrates with your legal expertise?

3:30  

Well, you know, when you're a lawyer, you're asked to give advice, but you're not giving advice in a vacuum. And, frankly, I don't think an entertainment law lawyer who doesn't understand the movie business and the dynamics and how it works, is necessarily going to give very good advice. So you have to understand the industry you are working in because the advice is not always strictly legal advice. It's often strategic advice. So, you know, how do I accomplish this? How do I do this? And, and a lot of that is not taught in law school. In fact, a lot of it is important film school at all. I mean, like, how do I get an agent? How do I submit my project? You know, how do I arrange financing? None of that, as far as I can tell, is taught in either law school or film school. And people sort of have to learn it at the school of hard knocks. I think it's a very, very difficult industry for many people to break into, for most people to break into. Because, you know, there aren't well defined steps to take to succeed. You know, if you just want to be a lawyer, it's pretty clear what your path is. You have to go to law school. Although in California, you could conceivably become a lawyer without going to law school, you got to go to law school, you got to pass the bar, then you got to get yourself an entry level position. And over time, even if you're not the most brilliant lawyer, you tend to rise and and succeed, you know, and, you know, it's the same thing with a doctor in a lot of other professions is sort of a clear path forward. You sort of know where you're going. But in the movie industry, it's the Wild West. You know, there are people who are very well educated and just completely strike out on this other people who will make something that catches the public fancy. And they go from nobody to, you know, a superstar overnight. So things change a great deal. And one of the reasons is that, in the movie business, essentially, what you're selling is creativity, you're selling a story, you're selling a movie. And, for example, let me give you a comparison between movies and soap. Okay, I like ivory soap, it's plain white soap. I've been using it for, I don't know, 40 years. And when I hop in the shower and open up a new bar, I have very modest expectations for that. So as long as it does the same thing it's done for the past 40 years, I am okay with it, and I'll continue to buy it. But, when I go to the movies, I have a completely different mental framework. If I go to a movie, and it's very derivative, and it's just like another movie I've seen, I'm very disappointed. When I go to the movies, I always want to see something fresh, original and different. And because basically the commodity, the movie business and selling is creativity. And the problem is that it's a very creative product. And audiences often want what's new, what they don't want, they don't necessarily, they can't necessarily tell you ahead of time what they want. I mean, for instance, George Lucas had a hell of a time getting the first Star Wars made, even though he had made American Graffiti and who had success, he brought it to every studio in town, they all rejected it, they all gave him the conventional wisdom, science fiction doesn't sell. Now, that was, you know, that was a very common conventional understanding of the movie business. Finally, he convinced his outlet at 20th Century Fox to fund the first movie. And so a huge hit. And every studio in town has been developing science fiction stories, like crazy. And the same thing happened again and again and again. And so you know, a lot of the executives in the movie business, they're driving down the highway at 90 miles an hour with your eyes firmly on the rearview mirror. They're looking at what happened in the past, and what was successful that passed for them and how to steer going forward. And it's crazy, because people don't want to see the same movie that they saw. They want to see something fresh and new and original. And when a filmmaker was able to make that and get it out there and get it distributed, often it gets a very good reaction, and it changes the rules of the game.

7:38  

And it's fantastic. You know, I'm actually reading Neal Gabler's Walt Disney biography right now, what a fantastic author and historian of our industry. And, you know, it's interesting, everything that Disney is, is because of leadership focused squarely on the future, just like what you're saying: fresh, new, original, always pushing, always demanding that the work be better than the work for right. And that's fantastic.

8:04  

But the problem is that the movie industry has been run by executives, who are not that creative, to be honest. You know, I mean, they may be created with budgets and accounting and stuff like that. But most of the people who are running the executive suites at the major studios, they are not filmmakers who graduated to the executive suites. They are people, a lot of them are like former agents or managers. They become studio executives there because of the relationships that they have, and people they can bring in. But they're not movie makers. And in fact, it's been said that Steven Spielberg has been offered the ability to run the studio, and he said, No, thanks. I'd rather make movies. It's much more fun than sitting in committee meetings all day and determining, you know, how to run the studio. I'd rather go out and make movies.

8:52  

I guess that's why these filmmakers have guys like you and I right, I handle the payroll. You handle some of this stuff in the lobby? You know, I'm really curious Mark, what are some of the common issues that filmmakers do come to you for when arranging financing marketing distribution? Like what are the kind of common themes or kind of the baseline that you start out with all new clients as they kind of come to work with you? And have you represented them in their interests?

9:17  

Well, we have a wide variety of different clients. So it's kind of hard to generalize. But I would say a big chunk of my practice is doing what's called production legal work. And that is all the contracts necessary to make a movie and secure the rights so that you can get distribution. And that means, you know, having written agreements, to acquire the scripts, having written agreements to employ your actors, you know, literally hundreds of different contracts and agreements have to be negotiated in order to make a movie that can then hopefully be good, but then can be sellable. And one of the problems that I often encounter is that filmmakers don't secure The rights, you know, they make handshake deals, they collaborate with people with nothing in writing. And they end up sometimes making something good. But it can't be distributed because we can't do the paperwork. You know, I mean, I've had clients who had made entire movies without a production lawyer, and paid people. And when I say, Well, where are the agreements with the actors? They say, Well, I can, I can, I can show you my receipts, my canceled checks, I say, No, that's not good enough. Copyright law has very specific requirements. If you are a producer and you want to own your film, you have to have written work for hire agreements with your cast and crew, besting the work product, the copyright in you, or do you have to license material like music, or, you know, pre existing copyrighted work to incorporate it. And if you make good, a really good movie, but you don't have your paperwork in order, you know, you could probably distribute it on YouTube and get away with it. But you're not going to, you're not going to get any major studio, you know, any significant player to take on your film, they want to distribute your film, they don't want to open themselves up to a lawsuit. And one of the biggest problems is, you know, filmmakers, they tend to be creative people who have ideas, and they're not often, you know, very business oriented. That's not always the case, there are some people who do both. And sometimes you have a director and an artistic person who teams up with a producer who's more business oriented. But if you don't, if you don't secure the rights, you know, you're gonna have a problem. And this, this happens all the time. Sometimes you can fix it retroactively. But you know, I've had clients who make movies and everyone disperses, and they go into post, and you know, six months later, the film is done. They don't have contracts. And now we have to find a guy who had a key role in it. And you know, he only works five days a year. The rest of the time, he's waiting tables while driving a taxi, and they can't find them. They can't find him, they have them, you know, sign a piece of paper. And so it becomes a real problem.

12:04  

You know, that's super fascinating. And suddenly that we talk a lot about is errors and omissions, you know, insurance. But you know, how do you keep from ever having to have a claim to begin with great contracts, good shared understanding between filmmakers and producers and actors, about what it is that people are entering into in terms of agreements, it makes a tremendous amount of sense. You know, on this point, you brought up, you know, copyright. I'm curious, what are some key aspects of copyright and trademark law that every filmmaker, whether they're just starting out, or are seasoned and grizzled, should understand?

12:39  

Well, copyright and trademark are two different things and a lot of people who are not intellectual property lawyers don't understand the difference. A trademark is essentially a brand like Nike for sneakers, or Pepsi Cola for soda. And you can put a name on your product without registering it with a Patent and Trademark Office. But if you are registered, you get some superduper. Extra rights, basically, you can prevent someone from using the same or very similar trademark on a similar product or service. So if you set up a hamburger stand, and you call yourself McDonald's, and you have a trademark in McDonald's, you can stop someone from across the street from a competing fast food restaurant called McDonald's, because it will cause confusion to consumers. It doesn't necessarily over stop you from setting up the McDonald's hardware store across the street. Because hardware and fast food, you know, they're different businesses, you know, when you don't go into the hardware store and say, you know, give me a big mac and cheese and you know, some french fries. And you know, and you don't go into McDonald's and say I need a I need a bunch of bolts, you know. So they're not competitive businesses. So trademarks can be limited to the geographical area, a company like McDonald's is worldwide. So it's almost everywhere. But sometimes you have a trademark and a company or a product just in one region. It's not necessarily infringing a trademark of a very similar product in another region, because they're not competitive. Okay, so that's trademark law. And one thing that filmmakers should know is that you can only infringe a trademark if you're using the trademark to sell a product. If you're shooting the scene and in the background, a FedEx truck submerges. And inadvertently, you know, not planned and you get the FedEx you know logo in your thing. You don't necessarily have to get permission from FedEx. Now, the media studios tend to try to get permission for everything. But independent filmmakers, you know, won't bother, which shouldn't have to bother. Because even though the FedEx image is in your frame, you're not using it as a trademark. It's different than if you make a film and at the beginning of the film, you say FedEx presents now using a FedEx trademark as a trademark Okay, but if it's just in passing, you know, in the background, you don't necessarily need a release. So that's one thing. Now, copyright is entirely different and trademark. Copyright is a property right. And it's derived from the United States Constitution, which empowers Congress to protect the works of authors. And authors is very broadly defined; authors don't just mean people who write books. Authors means musicians, painters, and people who create creative work, okay. And if you create something that's copyrightable, you automatically instantaneously get the copyright in your work, without filling out any forms, without writing any checks or engaging in any rituals. If you write a poem, you own the copyright in that poll, if you choose, and it's optional, to register your copyright with the copyright office, then you get some extra superduper benefits. And if it's the case of someone infringing your copyright, those benefits make all the difference in the world, because they're going to entitle you to statutory damages, and reimbursement of attorney fees. So if you're writing the scripts in your script writer, you should, at some point, before you start circulating the script in the industry, you should register it with the copyright office, you can now do it online. It's different from registering it with the Writers Guild, the Writers Guild is a union of writers, it's not a part of the federal government, the Copyright Office is the Writers Guild and can give you the same benefits you can get for registering to copyrights. And if you register your script with the copyright office, it's kind of superfluous to also register with a microscope, you don't need to do that. Okay. So if you register it, then you'll be able to protect yourself from any kind of theft of your script. And you know, that that should be it's not, it's not very expensive, and you don't need, you know, you don't even need a lawyer, this is early, you know, to register it, you can, you can fill out the forms online and register your work. And that will protect you. So American copyright law is territorial. What that means is that every country in the world has their own copyright law. And in France, they go by French copyright law, in the United States, we go by American copyright law, and French copyright law and American copyright law are quite different. In America, we have something called a work for hire doctrine, which says that the employer can be any owner, the original author of a work, so if Microsoft hire someone to do coding for them, and they will, in the enter into a work for hire agreement, or they are an employee of Microsoft, anything with a scope of their employment is owned by Microsoft copyright is owned by Merck, not by them. Now, if they're coding all day, and working from Microsoft, and Microsoft owns the code that they create. That doesn't mean that in the evenings when they go gather and go jamming on their guitar with their friends that Microsoft owns, the music doesn't obviously that's not within the scope, you're not being hired by Microsoft to make music they're being hired to code create code is so we have some doctrines in United States that are different, like to work for hire, training, a lot of other countries. And so every country in the world enforces their own copyright law. And in France, they have a copyright law that, in many ways, is much more protective of artists in the United States. Okay, so here's a famous case where John Euston he, he directed a movie called The Asphalt Jungle, and he purposely shot it in black and white, he could have shot it in color, you shot it in black and white, because that's the that's the way he wanted it to be. And under French copyright law, he's considered the orator. And he has certain rights in that movie that are not recognized under American law for films. Okay. So he makes the movie that is distributed, and it ends up I think it's what ends up in the MGM library. And at some point, Ted Turner buys that library, and he decides he's going to colorize all these old black and white films and make them color films, and or arguably, maybe make them more commercial, because some people would prefer to watch color jobs. And anyway, John Houston, who was an employee and created this directed this movie, and as an employee, he was at work for hire, it was owned by the studio, it was not owned by him. And after he died is Ted Turner sells to colorized version of the Asphalt Jungle in France, and John Eustace airs bring suit in Paris to to get an injunction to stop distribution in France, because John Euston, his moral rights say that you can't change an artist's work without their permission, and it was changed and so on. The Asphalt Jungle, the colorized version could not be distributed in France, while it could be distributed in the United States In the United States, it's considered the studio's copyright not is, you know, we don't recognize mobile rights in the United States, except for fine art in the United States.

20:16  

That is so fascinating. You know, Mark, something that we discussed just a little while ago is that in your practice, like a lot of the work is about making sure that films are set up in such a way as to not run into litigious outcomes. But you've also served as an extra witness, or have been a student of many of these landmark cases that have had a significant impact on what the film industry is or will become. I'm curious, can you discuss some of the landmark cases that you've served as an expert witness on or what the types of cases look like when they do, unfortunately, become litigious?

20:55  

I'm not sure. I mean, I've been an expert witness on maybe about 20 different cases. And often I'm not sure I would consider any of them landmark cases. I mean, there's 1000s of cases, you know, I mean, this country is a little bit litigation crazy. And my job as a lawyer for filmmakers is to keep them out of court. Because I assure you, the only people who often benefit from going to court are the lawyers, they make very good fees. And it's not a pleasant experience, necessarily for the parties. So I try to protect them from, you know, we keep them out of court and keep them away from disputes, because most filmmakers, you know, they don't want to be in these disputes, they want to be off making the next film. Anyway, as an expert witness, I'm often hired by other lawyers to testify about customs and practices and the business. I've been hired in a couple of cases where there were divorces. And part of the assets of the marriage were films, but you know, film rights and films, and I was asked to, you know, give an assessment of, you know, what they're worth, you know, which can be difficult to, you know, evaluate something like a film and what it's worth, it can change over time. I mean, a lot of films were thought to be somewhat worthless. And then all of a sudden, someone invented VHS, and DVD, you know, devices, and all of a sudden, they got a new life. And they got another new life when streaming came about, you know, so it can be difficult. But anyway, so in those cases, I may, hired as a witness to appear in court and depositions or arbitrations, and to basically just, you know, give my opinion. And the truth is that most judges don't know a great deal about the movie business. And often you need to bring in someone who can educate them as to how things work. I had one case where I was retained by the Attorney General of Texas, the state of Texas was in a dispute with AMC theaters, one of the largest theater chains in the country. And AMC Theaters was claiming a certain tax write off. And they were claiming that showing movies in theaters was a product, not a service. And so I was asked to come in and give an opinion upon that. And, and God, that's what happened. And believe it or not, the Texas Attorney General lost to trial, but it was overturned on appeal.

23:17  

Unbelievable. You know, it's interesting. You said at the top of our interview that you know, you're currently a professor at USC, but you've been at UCLA and a number of other fantastic universities in the California area. Can you tell us about the courses you teach? And what are some of the key takeaways for students?

23:37  

Well, for the past, I think about seven eight years I've been on the adjunct faculty, me part time faculty at USC law school. And my first couple of years there, I taught JD students to urge students to get a juris doctorate degree, it's what most lawyers have. And most of his students are a year or two out of college. And they're, you know, they're pretty young, and they're gonna go to law school, and then they're gonna graduate maybe when they're 26, or 27, or something like that. They'll become lawyers. But more recently, at USC, I've been teaching in a graduate program, where they offer an LLM degree, and the LLM degree is sort of an advanced degree. And all my students are lawyers, but 98% of them are lawyers from outside the United States. So they come to USC for this one year program to get this advanced degree, and then I expect most of them go back to their countries. And now they have their local law degree. And they also have an American law degree. And that probably makes them more attractive as lawyers in our country. So a lot of my students have been traumatized. In Japan, South Korea, China, Europe, and many of them English is not their first language and they have to not only, you know, have a local doctor. Great, but they also have to pass the English proficiency test, because the classes are in English, because I don't speak Chinese. And I have to say, I find it pretty remarkable the ability, I mean, I can just imagine myself going to China taking a graduate class and law, and how difficult that might be, for me, a different language, different customs, totally different system. So I have a lot of respect for them. Doing that the LLM students tend to be a little bit older, because they were already lawyers. So they tend to be maybe in their 30s, young 30s, or whatever.

25:34  

That's excellent. Have you ever taught a course on entertainment law? Specifically, it sounds like, you know, you're teaching American contract law toward No,

25:41  

no, I'm only teaching entertainment law.

25:44  

Oh, you're only teaching them entertainment? Well, wow. One

25:46  

point a long time ago, you know, many, many years ago, I taught torts, and worker's compensation and some other things. But, you know, for the past 20 years or so I only teach entertainment law. That's all I teach.

25:59  

That's fantastic. What are the key takeaways for those students related to kind of your courses related to entertainment, you know,

26:06  

the United States. We don't dominate very many industries anymore. Amy, we probably still want to dominate makers of aircraft, you know, at Boeing. And one industry we really do dominate is the movie industry. I mean, American movies are not only seen and enjoyed in the United States, but they're very attractive to audiences worldwide, far more so than Americans being curious about watching foreign films. Well, I think that's changing now with Netflix. And finally, we have access to some foreign films, and some of them are really great. But the American movie industry sort of, you're really dominating all of the countries. Now, that doesn't mean all the movies are made here. They're often shot everywhere, but many of them are essentially financed by one of the major studios in the major studios. And they tend to, you know, be some of the most successful movies out there. And so I think a lot of these students in their industries are not necessarily as developed his arts. You know, in China, they've been producing their own movies, when they started expanding the number of theaters so they have more theaters in China than in the United States. By far initially, you know, the marketplace was dominated with American films, and a lot of countries outside the United States engaged in a lot of CO productions, where they were, for instance, I Canada has I think about 65 co production treaties with other countries in the world, allowing Canadian filmmakers, and sometimes even American filmmakers, to get various benefits from shooting in Canada are using some Canadian actors or directors or writers. So I think that in many countries in the world, they want to learn about the American movie industry and how it works, because it affects them. Because the BSD American American Media Studios often have subsidiaries in other countries. And Orkin in our films are often the most popular and most widely circulated and distributed.

28:05  

That is awesome. Awesome, Mark. I mean, what inspired you to take up teaching? And how does it complement your work as an attorney?

28:12  

I don't know. I mean, I've always been. My mother was a school teacher. And I've always enjoyed teaching, but I may not accept for seven years. When I was a full professor, I've mostly just been an adjunct, you know, teaching part time, just, you know, maybe a class or two a year. So it's not like it takes up most of my time. But it's, it's, I find it rewarding and, and interesting, I'd like to deal with the students. And during COVID, I get to teach on Zoom, which was an interesting experience. And in some ways, my classes recently at USC have been 80 students, and I can't possibly remember their names with 80 students, especially when a lot of them are foreign names that I can barely pronounce. But when I'm teaching them on Zoom, their name is right on the bottom of the screen. So in some ways, it's easier for me to call

29:06  

on as much nice oh, yeah,

29:07  

I can now remember their names, you know, I mean, because it's right there in this great and otherwise I would have difficulty and also I found that on Zoom some of the students are a little bit less shy. In speaking up in a classroom with a big lecture hall. Some of them are a little bit shy, but on Zoom, they, some of them since you're, you know, they're sitting in their bathroom in their, in their, in their apartments, you know, they're less shy, they're more comfortable and they participate more. So it's interesting, that's great.

29:37  

I just being a part of that type of you know, pedagogy pedagogical experience like keeps you sharp keeps you up to date with things that are interesting and happening that you know, your students be interested in digging into, and it's a great way to give back and kind of proliferate good thinking and entertainment law. So that's awesome. You know, Mark, you know, you've been a producer practicing attorney, a teacher of entertainment law. And you've actually written a number of books and publications. Can you talk us through some of the books you've authored, and maybe discuss, you know how these books have been helpful to you and your own understanding of the industry and how the books have been received by kind of the industry broadly

30:18  

written six books, hundreds, hundreds of articles. But the first book I wrote was called Real Power, the struggle for influence and success and the weaknesses. It came out in 1986. It was my first book about the movie industry. And it's about why some films get made, and others don't why some people succeed, and others don't. It had a fair amount of success. It was originally published in hardcover by William Morrow, and then in softcover. He said to publishers and softcover, it's still I believe it's still in print with Sylvan James press. And then my second, my second book was the one book, it's not a movie related. It's called courtroom Crusaders. It was also done for William Morrow, in hardcover. And it's a bunch of anthologies and stories about Maverick lawyers basically. And so I went and interviewed a lawyer up in Alaska, who was an environmentalist, and criminal defense lawyer, and soda, and a whole bunch of lawyers doing non traditional things with your law degree. And so that came out around 1990, or 91, or so. And then I wrote a book called steelmaking in the film and television business, which I think is perhaps my most successful book. It's already on the fourth edition. And it's won some awards. And basically, it's a primer on entertainment law, and copyright and trademark and all the things and it's written, so that non lawyers can, can read it, understand it. And that's been very popular. In fact, from my classes at USC, I use it as the core school, that's what you're, what, that's what you're using. And then I wrote a book on multimedia law. It's a little bit outdated now, and it's out of print. And I wrote a book called Risky Business about independent filmmaking, I don't know that six, something like that,

32:10  

with risky business, you know, financing and distributing it film and independent film, what what are the kind of the big key takeaways or lessons that you're hoping your readers take away from when picking up that book and, and really digesting it,

32:25  

it is a risky business going into the film business. And, it's very frustrating for a lot of aspiring filmmakers to bring in. And I think a lot of them don't understand the dynamics of how Hollywood works. Which is, which is covered, maybe more in real power than then even a risky business. But when you're starting out in the business, it's very hard to get any access whatsoever. I mean, if you write a script, you can't just call up Warner Brothers and say, Hey, I'd like to come in and discuss it with you. If they won't even talk to you, they won't even take a meeting, they probably won't return your phone call. And if you send them a script unsolicited, they'll return it to you. And in the same thing about getting an agent, you know, it's very, very hard to get your starts, you know, I interviewed Jim Abraham's, and Joker brothers for my first book, real, real power. And they said they tried for years to break into the movie business. And you know, they made a Kentucky Fried Movie and Airplane! And they said, you know, we were knocking on doors, and no one wanted to meet with us. And then we had one hit, and everyone in town wanted to meet with us. And they were like, throwing money at us and throwing projects at us. It wasn't that from one day to the next, they became talented, they were talented all along. But once you achieve a certain level of success, in the movie business, things become much, much easier. You know, if you're a star, you don't have to worry about finding roles that are coming to you . Your agent's job is to read the 100 scripts a year sent to you and decide which ones you want to do. Because you can only do probably two or three. You know, if you're a director, you know the same thing. So getting to the point of having some success is what the real challenges are. And increasingly I think the best way to go is simply to go out and make your own movie. And stop waiting, asking for permission from the powers that be to bless you and give you money was bliss, most of the time, they're not gonna do it. Most of the time, you're gonna get your start. When your friends and family give you a small amount of money and you go out and make a movie. And if it's really good, it'll take off and then people will want to meet with you. Okay, so I mean, there are people making movies nowadays on their iPhones, you know, the technology has changed so much. It has made the movie industry much more democratic than it used to be. It used to be if you wanted to make a feature film, you needed to raise a minimum of a few $100,000 Just to paint for the negative stock and is developing now. You know, you can literally you can get a very good, adequate digital camera For five grand or less, and you know, if you shoot a scene, it doesn't work, you just hit rewind to go back and you shoot it again, you know, and when you can now edit on a Macintosh computer, you can edit your fill of you can shoot it on a digital camera. And, you know, there are some amazing movies being made for very little money. So money is not the barrier. I mean, for people with very limited resources, it's still a barrier. But, it's much less of a barrier than it used to be. And sometimes, you know, you have to realize that you need to take your career into your own hands, you need to go out there and make your movie. And if it's good, I think all kinds of great things are gonna happen as a result. But if you're constantly waiting for other people, you know, to give you their blessing, maybe a pretty long way,

35:47  

I think that's an extremely wise piece of advice for anybody in any industry, which is, you know, your life is your own, and you've got to stand up and go make something of it. And you know,

35:58  

you make a good film, it is all these film festivals that can serve as a launching pad for you, you know, get it seen and get it before people. And the truth is that you know that major studio executives do not have a monopoly on wisdom about what movies are going to work and what ones not, in fact, their batting record is extremely poor. I mean, if you look at all the movies that are released in the United States, every year, there's really only about three dozen, you know that that get to the, you know, a blockbuster $100 million stage, the vast majority of movies don't do much business. And a lot of them. I mean, major studios have often put out 15-18-20 movies a year, three or four of them are making almost all the money, and the rest of them are not working. And the major studios, they have plenty of money, they have access to the top talent, the top stars, the top directors, and yet most of the time they get up to bat and the movie just doesn't work. You know, because it's very hard to know which stories are going to resonate with audiences. You know, I remember that movie, My Big Fat Greek Wedding. It was made and all the studios, you know, said Oh, no, no, just aren't that many Greek Americans, you know, people aren't gonna get it, they all passed on it. Gold Circle Films took it out itself. And it became a blockbuster hit again, I don't know, 200 $300 million dollars in business. You know it because, you know, yeah, it was about a Greek family. But what I mean is, you know, people who are Italian or Jewish, they say that just like my family, you know, crazy grandmother. And we got, you know, at the same sort of dynamics, and they could relate to it, and it became a huge hit. And there were lines around the block of people wanting to buy tickets to see that movie, at the same time. And other theaters, major studio films costing 100 times as much. We're showing mostly empty theaters. So it doesn't matter if you have a really good story. That's what makes the difference is that's what people care about. It's what absolutes what your friends tell you at the watercooler on Monday, about what they saw last weekend that has far more impact than any advertising debate you studios can do to try to get you to go and see their movies.

38:11  

Absolutely. You know, I'm smiling thinking about that movie, because it really just warms your heart to watch it because the themes and the stories are universal. And it still resonates to this day. I mean, there's so many examples like this in the film world, and they usually come out of the indie world, you know, which is great, I think. I think it's a wonderful ecosystem of filmmakers and storytellers. And, you know, you mentioned earlier you know, camera technology is so much cheaper, but even there's been a revolution in lighting with LEDs. I mean, really, the opportunity for storytellers to contribute to the marketplace of ideas has never been easier. And film and cinema has always been an incredible distribution platform for people to kind of share intellectual ideas and emotional ideas, the whole landscape of human existence. And so that's really awesome, you know, Mark, yet, as we've been kind of going through here, your career, your background, your practice areas, it's awesome, the contributions you've made to the entertainment industry. I'm curious if there are any memorable awards or cases or projects that you've been particularly proud of the outcome?

39:18  

Well by the first edition of a deal making, one a, an award called the Crasner Kraus award, and they brought me and my family over to London and London, the British Film Commissioner, you know, gave the award for the best book on the movie business. That was that deal making the book the first edition showed in the fourth edition, first edition it was pretty slender. Now it's pretty thick to have that and, you know, I've been voted in by my peers. Martindale Hubbell does anonymous peer reviews of other lawyers, and I've gotten the highest reading for I don't know 1520 years and I've also been And same thing with Super Lawyers, they, they pull other lawyers, you know, and, and so I'd been designated as Super Lawyer the now 14 or 15 times or whatever. So those are the major awards. And as far as court cases go, most of the time, a lot of the time, it's me representing a filmmaker who has been cheated by a distributor, and trying to get them their money back or get them what they're what they're owed. And so let me just say, you know, for filmmakers, when it comes, if you make a film, and distributors want it, just don't sign that piece of paper put in front of you, you know, get someone who knows something to review it with, it's negotiable. And I'm just amazed sometimes at some of the very sad stories of talented filmmakers who make a great film, and then they get completely exploited by some of these rather sleazy distributors who take advantage of them. And you know, if you make a good film, and it makes us money back, you pay back your investors, you can make another film. But if you make a good film, and get exploited, and you don't get any money back, that may be the end of your career, and we're losing a lot of good people, because adequate filmmakers we're losing because they're being exploited by some very unethical sales agents and distributors.

41:16  

So in those cases where you mend those wrongs, I would imagine there's a particular sense of pride in that, which is fantastic. Are there any movies that you've had a hand in or progress you've had a hand in, that you've been excited about in terms of their impact on culture?

41:34  

Well, I'm not sure it might have changed the culture. And, you know, as far as I'm concerned, that culture, to some extent, is going downhill. So I'm not sure I want to take credit for it. I mean, if you look at movies overall, frankly, I think a lot of the movies, you know, I like foreign films, I like documentaries, I'd like quirky independent films, a lot of what the major studios are putting out, it's just another superhero movie. And I can tell you, in the first five minutes of the movie, exactly what's going to happen. They're all sort of added to the same cookie cutter. And so I have to say that a lot of the major studio fairs have become increasingly homogenized. You know, it's almost like there's a formula, you know, you got the superhero, and you got the villain. And, you know, they come up against these obstacles, and then they win. And it's like, the same story told again, and again, and again. And, and frankly, I don't, I don't find most of these blockbuster hits all that interesting. They, they're all very derivative. What I like is something that's, I watch it and I say, Wow, that's unusual. Who would ever thought, you know,

42:39  

do you make the rounds at film festivals pretty regularly? Barker is not so much.

42:44  

You know, I used to, I used to do a lot more of that. I used to go to Cannes and Toronto, and a lot of other focus on that, not so much anymore. But, you know, it's great to go to film festivals and subways, you see some really interesting, unusual films that are unexpected. So we do go to some,

43:06  

that's great. You know, you had mentioned something just a moment ago about the kind of challenges and pitfalls that producers can oftentimes run into, especially if they're just starting out. And you said, oftentimes, it's signing a contract before reviewing it. Uh, what are some of the common legal mistakes that filmmakers or producers make?

43:26  

Well, one mistake is incorporating in your film, photos, or material, you don't have the rights to, you know, like taking some, some people seem to think if it's on the internet, it's free or fair game. And you can just take it and put it in your movie. And sometimes you can, it's under the fair use doctrine. But sometimes you can't. And you know, so you have to be careful about that. Filmmakers should also always have the script clear, before they go into production. If you have a legal problem in your script, often it can be changed very inexpensively, just by changing some dialogue or changing his scene before you shoot. But if you shoot the film, and then you then a lawyer looks at it and says, Oh, you got a problem here. You may have to go and reshoot materials. And it can be very expensive. So it's very important, I think, to get the script clear, you know, before you go into production. But another thing that's important is to have a set photographer. The biggest complaint I hear from distributors is that there aren't enough still photos, and no, it's not good enough to take them off the film itself. You need a still photographer there, at least, you know, a fair portion of the time. Take some good stills and of the actors and also some behind the scenes stuff. And you're going to be needed for the press kit, you should have at least at least 100 Good. Still photos. You know, when you license a film to a distributor, they don't want us to film, they need other collateral material to help market it. You know, they need good key art. A big Need a good trailer, they need good stills, you know, it needs a good synopsis, the whole bunch of other things that go along with it. You know, if you have a film, that's kind of a mediocre film, but if you get a really good trailer, you'll make some sales. Whereas if you have a really good film, but you have a pretty mediocre trailer, it'd be much more difficult. I think, you know, one of the problems I see is a lot of filmmakers, probably out of financial necessity. They don't have a production lawyer. And they just use contracts of some other shoots. And their production matters. She says, Oh, well, we use these contracts on his other shoots, why don't you yourself and filmmaker things? Well, that's great. But you don't battle, all contracts are the same. It's not just one set of contracts. Amin does some contracts for actors, there are some that are direct employment, and there's some are loan outs. There are some that are union, there are some that are non union. This is a variation, and someone has to make sure you're using the right, the right contract. And so you don't have to later on, go and fix everything. We'll try to fix everything.

46:10  

Some fantastic advice, you know, Mark with your finger on the pulse of both lawn entertainment. And with the world changing as quickly as it has been both in terms of technology of how films are made and how films are distributed and produced. I'm curious, just What trends are you seeing and changes that you foresee both in the legal landscape of the industry and just the industry at large?

46:37  

Well, the legal illegal industry is actually relatively small. I mean, entertainment lawyers, they're mostly in New York or LA, if they're in the music business maybe in Nashville, if they're in the multimedia, you know, video game business, maybe San Francisco, but you don't find many full time entertainment lawyers outside of those areas. It's a relatively small community. And by and large, you negotiate with the same people again, and again. And again, you better keep your word, you know, and because you may take advantage of someone today, but next week, you know, the tables are going to be turned on you. And if you didn't act honorably, you know, it's going to cost you. So the industry is relatively small compared to, for instance, the banking industry, oil and gas industry. I mean, it's relatively small, the biggest change that's been going on recently, and there's been a lot of changes in the movie business. The movie business was changed dramatically by the rise of television in the 1950s. Movie going dropped off dramatically, because people realize you could buy this appliance and sit at home and watch all the stuff you want for free. Then the chain changed again, with home video, VHS and DVDs. And now more recently, things have changed a great deal with streaming. And that has really drastically changed the economics of the business. That's what concerns me right now. That is the strike. You know, I used to have cable TV, and I was paying over $300 a month for cable TV, then I got rid of it and started subscribing to over the top, you know, streaming channels. And now I pay about 50 bucks a month. I'm not lacking anything I'm seeing as much if not more than before. And that's going on in the industry, cable TV is dying. And streaming platforms are increasing. And but the amount of money that's been generated is going down. And so now you have all these companies who are following Netflix's lead to getting into streaming. But the amount of money that's coming back from people watching films is also declining. And so we're in a kind of a difficult time. You know, the writers and the actors are, you know, justifiably concerned about the decrease in the revenue, especially from things like residuals, you know, they need to be able to earn a living to stay in the business. If you lose all these writers and actors and people, you know, you're not going to have the pool of manpower you need to make good movies. So we'll see what happens. We'll see Oh, hopefully, the strike will be settled within the next month or so.

49:14  

Yeah, fingers crossed for everybody's sake. For you, Mark, what are you most excited about in your upcoming projects or endeavors?

49:21  

Well, actually, the project that I'm most excited about is my son who's a filmmaker who went to NYU film school. He just finished his first feature called Molly and Max in the future. It premiered at South by Southwest. It's been in a bunch of other festivals and won a bunch of awards. And it's coming out in February around Valentine's Day, and it's a sci-fi romantic comedy. That's the movie I'm most excited about.

49:49  

That is fantastic. What fun. That's fantastic. Mark, thank you so much for your time. I'm curious before we conclude your, you know, when you're not writing, teaching or practicing. What are some of your personal interests?

50:02  

Well, I like to go to the movies. I like to play tennis, you know, I like to read a lot, you know, no skydiving or anything particularly unusual.

50:10  

That's great. Any final words of advice for aspiring filmmakers or lawyers or soon to be lawyers thinking about getting into the entertainment segment?

50:20  

Well, what I would say is, you know, don't be disappointed if you're not an overnight success. Because frankly, whenever you look at it, look into the background of people who were claimed to be or or thought of as overnight success, often you realize that they worked in, they've worked for 10 years, and then they become an overnight success. I don't see too many real overnight successes, it takes a lot of work, and a lot of effort and you know, if you stick to it, you know, eventually, hopefully you can, you can earn a living in this business. But you shouldn't expect it to happen. You know, 123 It just, it rarely rarely rarely happens that way,

50:57  

tenacity, grit and making it happen. Yes. That's awesome. That's what you need. Well, Mark, thanks for being On Production. Really appreciate your time and your expertise. You're welcome. Thank you.

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