Lights, camera, lawsuit: Film disputes and legal lessons

Nikkie Kitching
Oct 17, 2021
8 min read

Film is loved on an international scale. And when the world unexpectedly went into lockdown in 2020, that love of film was heightened and became a part of our daily routine. However, film lovers like you and I only truly see the final product which is the film itself. What we miss is the creation of storylines, cutting and chopping of scenes, and arguably even more interesting, the paperwork behind the masterpiece.

Due to the number of stakeholders involved in the making of a film, the industry is no stranger to the legal sphere, particularly when it comes to contracts and legal questions along the way. What happens if my music is used as part of a film's soundtrack? Who's liable if an accident occurs on set? And what rights do I have if a film gets cancelled mid way and is never shown on the big screen? Questions like these are common in the film industry but with the right contract and additional documentation, these questions should already be addressed accordingly.

Let's break it down...

The three main stages of a film are:

Pre-production. This regards what happens before production i.e. breakdown of the script, analysis on how scenes will be acted out, which role is assigned to who, etc.
Production. This is when the main work is carried out i.e. sets are built, scenes are filmed, etc.
Post-production. This regards what happens after the main work is completed i.e. editing raw footage, adding soundtrack and effects, etc.

In a legal context, a film of any size requires stakeholders to have solid contractual obligations. Depending on which stage of the film you fall into above will also determine which agreement you enter into with the production company. Some examples of these agreements are below:

Pre-production. If you play the role of director or executive producer of a film, pre-production is a crucial stage. In these roles, the director or producer usually overlooks the content of the film and secures the film's finances. In this respect, the contracts that the director or producer enter into will most likely include a budget to ensure all applicable costs are covered and the right stakeholders are paid at the right time as well as clauses relating to remuneration and credit.
Production. If you are an actor, the production stage will be the most important stage for you as it requires all, if not the majority, of your time and involvement. Within an actor's agreement, this will set out a number of clauses including how many hours you will be acting, the start and end dates of acting and if you're a famous actor, promotion and publicity obligations.
Post-production. If you are responsible for editing the movie, you will most likely have an editor agreement in place with your production company. This agreement will most likely be a non-exclusive "work for hire" contract. This essentially means that a production company will have many editors working on the same film at any given time and "work for hire" allows for the production company to maintain ownership of the final product.

All sounds pretty straight forward right? Well, not necessarily. Each film stakeholder will need to understand their role fully and ensure that any concerns they have are discussed before an agreement is drafted and executed. If these concerns are overlooked or not brought up, celebrities, producers and even the production company themselves may face legal action. To get a better idea of how lawsuits arise, we explore three famous films and the lawsuits that followed.

Case studies

Black Widow (2021)

One of the latest disputes to arrive on the scene involves Scarlett Johansson and Disney.

In July of this year, Johansson had sued Marvel, which is owned by Disney, claiming that they had breached their contract. According to Johansson, it was originally agreed their her new film, Black Widow, would have its own theatrical release. Whilst this was released in cinemas, Disney had also decided to stream the film on their streaming service, Disney +. Due to the pandemic, a number of films that were supposed to be debuted in the cinema were either delayed until further notice or instead released onto streaming sites. Examples include Disney’s live-action Mulan and the latest James Bond installement "No Time To Die". Whether or not, actors and actresses of those films had also claimed breach of contract is unknown.

Johansson claimed that the dual-release strategy for her film had significantly reduced her compensation. This meant that those already subscribed to the streaming service, Disney + could already watch the movie by paying a little more than their monthly subscription price and also less people showed up to the premiere of the movie.

At the time, Disney’s rebuttal was that there was “no merit” and that they had complied with the contract. It has now been confirmed that the lawsuit has been settled and both parties have come to a mutual agreement; both stating that they look forward to any future collaborations.

Even if the lawsuit for Johansson had not occurred, Johansson is still currently the highest paid actress in the Marvel cinematic universe.

Black Swan (2010)

A year after the release of Black Swan in 2010, two interns working on the movie had filed a lawsuit against Fox Entertainment group, the studio responsible for production of behind the movie. The interns, Eric Glatt and Alexander Footman, working in accounting and production respectively, had claimed that they received no pay or benefits, despite having worked five days a week for more than a year. They claimed that this broke US federal laws and that interns are only required to perform tasks that had no educational value or financial recompense. They advised that the work they carried goes beyond this scope.

In a similar nature to the Black Widow case, Fox had claimed that their case had no merit. Glatt and Footman had expanded their lawsuit to cover Fox's parent company, Twentieth Century Fox. In a statement for Fox, spokesman Chris Petrikin had advised that Fox will refocus on a return of "dynamic, educational internships".

The case, which spanned the course of five years, ruled in favour of the claimants. Judge Pauley had said that the work that both Glatt and Footman had carried out should have been carried out by paid employees rather than interns. They both roughly received $7k each. Fox had initially appealed the decision but then eventually settled.

What sets this case apart from many movie lawsuits is that this changes how production companies treat their interns; not only those who interned or are currently interning at Foc Productions but also those interns who work for other major production companies. This has then caused many media and production companies to rethink the interns they hire and whether any of their existing employees fall under the 'worker' or 'intern' category. This has also meant that many internships at big production companies have significantly reduced.

The Hangover II (2011)

At the heart of any film agreement lies intellectual property clauses; essentially legal rights when it comes to human creations. This could be literature, songs or even inventions. One type of intellectual property is copyright; a legal right that protects creative work.

As the premise goes, three friends wake up from the worst hangover having forgotten the events of the night before. In one scene, actor Ed Helms wakes up to a new tattoo on his face; resembling the tattoo that boxer Mike Tyson has on his face. The original tattoo artist, S. Victor Whitmill, registered a copyright in the tattoo in April 2011. claimed that Warner Brothers,

Whitmill had asked Warner Bros. to stop featuring the tattoo in posters and the actual movie as this was copyright infringement. In response, Warner Bros. denied this and stated that copyright doesn't apply when it comes to tattoo or body art. Additionally, their use of the tattoo would constitute "fair use" under several copyright acts. "Fair use" essentially means that, in some limited circumstances, works of art can be used without the artist's permission. Some examples include using the work of art for parody purposes, sampling small parts of a song or even using part of the work for commentary purposes Essentially, if Warner Bros. could argue that their use of the tattoo fell under the doctrine of "fair use", this would be a strong defense against a claim for copyright infringement. However, Warner Bros. "fair use" argument was 'silly'. Eventually, the tattoo remained on posters and in the actual movie and the lawsuit was settled before it went to court. The settlement figure was not disclosed.

Whilst some may think that a simple work of art can be used in a film without ramifications, the reality is that many film directors and producers often overlook the art, music and literature they use.

So, how I can protect myself?

Whether you're already part of the film industry or are looking to join the industry, below are some helpful tips to legally protect yourself:

Read through your contract. Each stakeholder in film production, whether big or small, will have a contract in place. As cliche as it sounds, it's always good to read through your contract a number of times and ask the any questions where answers aren't covered in the contract. It's a legally binding document.
Know your rights. If you are a producer, you need to ensure that all the rights are secured for that particular movie. If you are creating a movie based on a book, have you been given permission from the author to create the film? If you are basing your film on real life events, have you spoken to the people who were involved in the event? If you are planning to use a specific song, have you spoken to the music publisher? And to secure these rights, have you paid the respective owner the specific sums?
Check every form of art. As we've learned from the Hangover case study, as a director, it's good practice to check which types of art you intend to feature in your film and if you have obtained permission from the original owner/creator of the art. If you are dealing with artists or if you know that your art will feature in a film, there should be a part of your contract which states that the producer of the film has a warranty that the final product does not infringe upon the rights of any third party.
Ultimately...speak to a lawyer. Whilst contracts can be lengthy, that doesn’t mean that all contracts should be complex. If a contract is drafted correctly, both parties will understand their obligations, expectations and the overall scope of their roles. Furthermore, as someone who works in law herself, it’s much cheaper to hire a good film/entertainment lawyer who has years of working in the industry than have to go to litigation or pay damages due to a poorly drafted contract.

Kindly note that the above is not an exclusive list of tips but rather a rough guideline. Advice will be dependent on your stakeholder role and your overall involvement in your film.

Final thoughts

Putting law aside, the most important lesson to note about the film industry is that each and every person plays an integral part in the production of a film; whether you're an intern or the starring role. Creating a film is no easy task and naturally, there's bound to be human error along the way. However, the right contract can certainly reduce the level of risk and uncertainty that may arise.

Some may argue that something as rigid as law and something as creative as film may not mesh well. But as with any conflicting concepts, the key is balance. If you can understand your legal rights and still have the ability to let your creative juices flow, this makes for a successful professional relationship.

For more information on film disputes and related articles, check out the following links:

Lights, camera, lawsuit: Film disputes and legal lessons

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