Indie Filmmakers: A precaution for local hires when the producer/production company is foreign based

Ever been hired for or worked with a foreign based producer or production company? Did you have a good experience? I hope so!! Because recently there’s been many so incidents where foreign based producers or production companies have failed to make any payments to their locally hired crew members, or have flat out refused to compensate those who helped make the filming possible (be it the production coordinator, assistant, cinematographer, co-producer or whoever else helped). These foreign based producers/production companies think they can outsmart local hires by doing this, as they’ve realized, that if their potential victims decide to sue them in U.S. courts here, how difficult it would be (in terms of money, time and logistics) for these victims to establish service of process in a lawsuit later when the foreign producers/production company are back in their native countries. Plus, for a local hire to expend all of his/her money to pay for attorney’s fees and court costs, when the dollar amount of the owed compensation is probably not so high?? … probably not even worth it. And so, the local filmmaker/crew member is forced to suffer the loss, grow bitter and become more jaded with the movie biz while being asked to suck things up and move on. Well, here’s a few tips that you should always keep in mind right before being locally hired here by a foreign based producer/production company:

1. Always ask for a written agreement, be it a letter agreement, crew/cast deal memo (whatever’s appropriate for you), short form, long form, service agreement, work for hire, etc.. and make sure you always have an attorney on retainer to always review/redline these offers and agreements. (We, The Hollywood Lawyer, can represent you on a contingency basis where applicable and available) Don’t regret not hiring an attorney when you realized that you’ve been scammed by a foreign based producer or production company later.

2. If you absolutely persist in not hiring an attorney to review/redline your offers/agreements (and I seriously don’t know why you would), then make sure that the agreement has at least the following:

  • A jurisdiction clause, stipulating that the jurisdiction be U.S. jurisdiction, governed under the laws of your state and county courts (ex, California law in the Los Angeles County courts) or an arbitration clause, stipulating the method of personal service (you think reasonable and doable for someone in another country) and the fact that all arbitration awards/judgments are final and can be entered into U.S. courts as well
  • An attorney’s fees clause, stipulating that the prevailing party be awarded attorney’s fees by the losing party
  • A staggering payment or deposit clause, stipulating that your compensation/pay be made out to you in installments, with the first being made upon execution of the agreement or acceptance of the offer; or that you be paid a refundable deposit beforehand
  • A specific milestone timeline with regard to (only if applicable to the kind of work that you did to help contribute to the film – i.e., wouldn’t be applicable to gaffers, PAs, etc..) when you would be able to send your completed work (i.e., edited files, film rolls, sound files, etc..) to the foreign based producer/production company, and payment incentives along each milestone achieved
  • A guaranty clause, binding another U.S. based party in case the foreign based producer/production company defaults, breaches and/or is uncooperative (i.e., official agent/representative, affiliate, branch, sister company/partner)
  • A liquidated damages clause if you’re able to slip it in without the other party’s objection
  • An escrow clause, allowing whatever you invoice to be deposited into a designated U.S. escrow account before commencement of work or during specific times in the whole process

3. Now, even if you make sure you have all of the above in your agreement/offer, there’s still a possibility that you’ll still be scammed by the foreign based producer/production company, and so, whenever you decide to take on a local hire job by a foreign based producer/production company, always do your own due diligence on the producer/company by at least starting to ask yourself the following questions: Is the foreign based producer/production company reputable? What kinds of films have they put before? Are they good? Do they have a following? Do they have a social media presence? Do I have as much of their contact info as possible? How can I reach them if the foreign based producer/production company is suddenly m.i.a.? Will it be worth it for me to file a lawsuit against them later, if I end up not getting paid? Am I documenting our conversations (i.e., email, phone, text, mail, etc..)? Can I legally keep tabs on their whereabouts? and so on.

Although these things might seem obvious and common sense, when you’re actually in these types of situations, sometimes you don’t know what hit you as your guard’s not up and as you’re in that “beggars can’t be choosers here in the entertainment industry” mode. So, be vigilant my creative friends and don’t be so scared of attorneys. We’re here to help you and protect you as much as possible. Cheers.

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Disclaimer: Please note that the information contained within this blog post and site is offered simply as a consideration to visitors who are in the entertainment industry and are seeking to learn more about various areas of entertainment, be it in film, television, music, digital, new media, film financing, merchandising and/or branding. As such, the information so provided should never be construed as legal advice. If you need further assistance or legal advice for your specific matter, please do not hesitate in contacting an entertainment attorney (film, music, digital, licensing) here in Los Angeles at The Hollywood Lawyer by (1) emailing us at info@hollywoodlawyer.com; (2) calling us at (323) 300-4184; or (3) filling out our online form. www.thehollywoodlawyer.com

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