Interview with Steven Lowe, entertainment attorney, www.lowelaw.com
Rules of battle for survival in the Entertainment Industr
Will De Los Santos says that he would rather work with you than an agent and he is currently using you to represent him with his pitch to FOX TV for a new show. What have you done for Will in negotiating to convince him that you are the person he needs for this negotiation?
Well, probably I tend to be a bit more tolerant and I bring more personal attention than the typical ultra-busy agent or business attorney to the relationship. Will and I have gotten to be friends over the years.
I noticed on your web site www.lowelaw.com a list of 18 items that people should not do.
Yes, these are major mistakes that I have seen people make in the entertainment industry. For example, one of the things that is on our list is people who let their writer’s guild registration expire, which it does after five years. It is destroyed by the WGA. Then writers often have no record of the fact they created this treatment or script, especially if they don’t bother to register it with the US Copyright office, which is a more preferable place to register artistic works anyway for a number of reasons. Our list of 18 items is things I have seen over the years that have hurt people’s cases.
Can you give us another major mistake artists make?
“Mistakes” that are most prevalent are the inability to prove the delivery of communications. This is very common. For example, either they sent the communication by email and they didn’t save the email or the email or their computer was destroyed or they or they don’t have the responding email from the other side. This would mean that it is just your word that you sent it and as you know sometimes people don’t receive emails so this is not a good position to be in.
If there is no receipt for an email or acknowledgement from the other party then an email is not valid?
Well, then it is just your testimony that you sent it. What you would have to do prove you sent it is to hire a forensic computer consultant to go in and examine their computer. To try to investigate whether someone received your email is a very expensive and difficult process, whereas if they had sent it by FEDX or FAX there would be virtually no issue because you would have a signature. Even if the addressee did not sign for it, at least there is proof that it was sent and signed by someone. Even then we had seen people deny receipt.
We had one case that went to trial against Universal where we had certified mail receipts and Universal tried to take the position that the mail room signed for it and it never made it to the individual. Defendants in cases will be as crafty as they can. The bottom line is, whenever possible, have some sort of proof of delivery. In the entertainment industry this often ends up being the most important issue. What will happen 9 times out of 10 is the defendants will deny they ever received it.
Are we only talking about a pitch or a proposal for a film?
This could be any number of things, a demo tape, a screenplay, a treatment, a synopsis, any number of things that contain intellectual, creative property, including ideas. Ideas can be protected, to a certain extent, under state law but not under copywrite law. People submit ideas all the time, like ideas for a TV shows and they are just stolen as a matter of course.
I have interviewed filmmakers who say their concepts were stolen. One man said he pitched 5 concepts to Discovery and each time they said, “We are working on that same idea” and soon afterward they released the exact the show he pitched. He stopped pitching to the studios because he thought there was no way to protect his idea.
It is very difficult to protect an idea. That is exactly what entertainment companies do, it is so easy to back date a memo for a year containing the same idea maybe changed every so slightly so as not to look too suspicious, and that’s all they have to do. It’s called “independent creation.”
When you pitch studios, is there any way you can get something in writing to prevent them from stealing your ideas?
There is something called a non-disclosure agreement that people have tried to use with studios. First of all, studios have their own agreement that they usually require you to sign and these agreements waive all of your rights under state law with respect to “idea theft” claims. You never want to sign those agreements. Secondly if you have them sign a non-disclosure agreement, which they rarely sign, all non disclosure agreements typically include a statement saying that they will have no obligation under the contract if this idea was previously something they had acquired rights to in the company. Either by developing it in the company or by acquiring rights from someone else prior to the date they meet with you. Now, it is always suspicious when they are all excited about your idea and then they suddenly notice that this is something that is being developed within the company. The circumstances are sometimes suspicious and you do have to investigate them ultimately if you decide to file suit. All you need is 2 guys in the company. One says “Yes, I created this a year ago and I sent a memo to John Smith and it has been sitting there and recently we decided to work on it again.” You will need to get into all of the dates to see if anyone contradicts the other.
It is hard to get a lawyer to take the case knowing because no one wants to go into a case like this, especially on a contingency, knowing that the defendant could develop a story that may pass muster, even though it is a total deception.
So, these filmmakers who say their ideas were stolen are probably telling the truth?
Most all of them are true. The rule is they will steal your stuff; the exception is they won’t. It is pretty much considered business as usual, even when they sign non-disclosures, even when submitted by a lawyer or an agent, even when you are someone with clout. That was the old rule, “they will not screw over anyone with clout.” But that is not true anymore.
How do artists protect themselves?
When you talk about ideas, it is very difficult. When you follow the 18 rules on my web site, you are less likely to be ripped off. On the other hand there is no guarantee and there is another way that I have seen people successfully protect themselves and that is with a paper trail. For example, you send emails (or better yet, faxes) saying in substance “This will confirm or meeting on July 10, 2007 when we met and discussed my project (describe project) and you were going to explore it further.” Next meeting,
“we met again yesterday July 14, 2007, and again we talked about the development of this project.” Then if all of a sudden they discover this idea was previously originated within the company it tends to look a bit more suspicious.
What does your Lowe Law firm specialize in?
The emphasis of our law firm is dispute resolution. When there is a problem we come in and fix it. But in terms of negotiating, we have handled virtually every type of entertainment contract, either from a litigation or negotiation prospective. That includes everything from an option agreement to a distribution agreement to an agreement for a particular actor or person in a reality show.
I know writers who have scripts and no agents and I wonder, would it be easier to call to get an appointment with you to go in and pitch their projects?
Yes, writers are typically not able to obtain agents until they have had success, (e.g. a TV show or film released): thus there is a catch 22 where you can’t get an agent until you have had some success and you can’t achieve the success until you have an agent. The solution to this is for your first time around, hire an entertainment lawyer and they will submit it for you. The difference is lawyers won’t do it on a percentage basis, at least until you get a deal going we work on an hourly and flat fee basis.
Do you charge the same 10% an agent does once a deal is made?
The client has the option to pay us on an hourly basis or at that point they can engage the firm on a percentage basis. The typical percentage is between 5 and 10%.
What do your clients say they appreciate the most from your firm?
Candidly, I get a lot of compliments from people who say we tend to be straight shooters; we are not into a lot of b.s. that is prevalent in the entertainment industry. We tend to give you the bottom line and have more empathy for creative people rather than treating you like “just another client.” Each client is a unique and special talent to us and we enjoy solving their problems. We are also told that we do extremely high quality work.
For people interested in your services, do you have a free 30 minute consultation?
Yes, we do. We want you to read our web site and be familiar with our 18 rules of battle for survival in the entertainment industry and call us when you need our support.