Dean Cheley is an entertainment attorney in Los ANgeles at the firm Donaldson + Callif, but his expertise goes beyond litigation. Screencraft recently interviewed him about YouTube stars, life-rights issues, the new world of online distribution, and more.
ScreenCraft: Could you tell me a little bit about your background?
Dean Cheley: Right, so I’m an entertainment lawyer. I represent primarily independent film producers, but increasingly also fall television production companies and YouTube channels, like The Fine Brothers.
S: That’s an interesting and growing niche. How’d you get into that space?
D: I used to do entertainment litigation, and quickly knew that I needed to get away from that and do something that was more about creating and building something new, and working more closely with creative talent, which is why I chose production-side legal. This way I get to work directly with the artists. Our motto is allowing filmmakers to make the film they want to make. So much of the work that our firm does is tricky rights issues and first-amendment issues. We help artists tell stories their way and we help them get insurance and distribution. We also help them through the production process.
S: It sounds like some of the services you are offering extend beyond simple legal assistance?
D: Legal is a hard word to put on it. A lot of it is strategy. It’s about knowing the players and their reputations. Knowing who would be best for the film. That doesn’t have anything to do with the law. It’s more about business and strategy.
S: What are the gray areas when it comes to rights issues for people who are choosing to make an independent film and then self-distributing it online?
D: One of the recent trends we’ve seen is an increasing number of independent films that focus on real-life people or events. These are narrative-fictional films, but they use these as the basis for their story. They don’t have the rights to that person. They don’t have the rights to Dominique Strauss-Kahn while making a film about that scandal. Nor do you need those rights. You have a first-amendment right to tell your story. So long as you write your script in a way that doesn’t violate any personal rights, you have the right to do that, just as one has the right to write an unauthorized biography. Think about all the books that came out in the last election, biographies about Obama. There was probably one that was authorized, and the rest weren’t. Similarly, I worked on a film called Devil’s Knot with Reese Witherspoon. We didn’t attain any life rights, but we worked with the screenwriter to annotate a script that was factually accurate. Those fictionalized elements of dramatization didn’t impact their legal ability to write the film the way they wanted to and get it out in the world.
S: What are the instances when a documentary really does infringe on someone's copyright or life rights?
D: On the Dominique Strauss-Kahn story that we did, there were parts that talked about him and his relationship with his wife at the time, and there wasn’t any press or public document that said they had a tumultuous relationship. But one certainly could draw conclusions that couples argue. It’s probably fair to say that this couple argued. There it was working with the writer to not overstep his bounds into the personal lives of the wife, but still write the story he wanted to write, keeping in the back of his mind that certain private facts need to remain private. When we invade one’s privacy, that’s when we get into legal trouble.
S: Even if it’s fictionalized? Could a writer take a living public figure's story based on them and their life, and invent some fiction based on their personal life?
D: It depends if they’re living or dead. The “deader the better” is a motto here. It means that once someone dies, a lot of their personal rights are extinguished. There you can see a lot more fictionalization. Abraham Lincoln can suddenly hunt vampires. It can get really crazy. But while living, we do have an expectation of privacy. If we’re going to write a script about a semi-public or public figure, we have to make sure that when we’re talking about facts, they’re accurate, supported by two to three independent sources. That’s what the script annotation looks like. Just have a writer scribble their sources on the side. Other times we’ll have a very detailed list in an Excel spreadsheet.
S: What if it’s not presented as fact but as pure fiction? What if we did like a "Bill Clinton: Vampire Hunter?" Is that permissible? Are there issues there?
D: We have plenty of filmmakers that often use a real-life event or a real-life person as a jumping-off point for a completely fictional story. The example of that is I worked on a film called Banshee Chapter. It started out with real-life trials that the government did on troops using psychedelic drugs. This is a real-life event, real-life people, all being depicted. It then jumps into a story that was completely fictional where a journalist takes some of these drugs and has an experience that turns into a horror/suspense story. But the factual elements still stayed factual. We just make sure that those parts of the script have legal support and are based on fact.
S: Would I be correct in saying that it’s important to make very explicit in your screenplay when things are factual, they need to be accurate, and when they’re not factual, it needs to be very explicit that it’s not factual?
D: Yeah. That goes to a large part of what you see in films. Is it based on a story in part or is it a completely fictional story?
S: You’ve worked with a lot of these titans of new media. Did you work with Camp Takota?
D: No, I didn’t work with them, but in terms of filmmaking done for the generation of the audience, that’s one of the groups that studios are really focusing on. Digital stars, social media stars making films about them. A large number of films that come into this office have some type of built-in audience. I do a lot of music films, a lot of films about films, like Room 237. The thing they have in common is they have these built-in audiences. One trend that I talked about in my notes was the rise of direct-to-consumer platforms and how filmmakers are utilizing that. The way they’re taking advantage of that is selling the film on their website. We have technology like VHX. One deal I’m working on is with a company called Gumroad. They provide what’s called a white-label solution. Technology that’s in the background. iTunes branding or Amazon branding.
S: What opportunities do you see for a screenwriter who wants to write direct-to-consumer films? What things should they keep in mind when writing the story? Should they be writing it about someone or a brand with a pre-existing audience?
D: I think the first question is: “Who’s my audience?” If it has a core audience that is identifiable, then they should start connecting with that audience the minute they commit to making the film. Which might be a finished screenplay. Maybe it’s even before. Then hone in on that community and use social media as an awareness filter very very early on. We have filmmakers who start building out their fanbase before they start shooting. Marc Schiller, who runs a distribution company called Bond, always says, “Stop acting like a filmmaker and start acting like a rock star.” Now our indie filmmakers are becoming indie distributors. They build these loyal fans and loyal audiences that are much more effective than a marketing staff in terms of media. I worked on a film called Beauty Is Embarrassing, which is directed by Neil Berkeley, a very talented filmmaker. It focuses on Wayne White, a fantastic artist with fans all over the world. No one came forward for distribution initially, but they went ahead and did a small theatrical release that really made a dent. Q&A towns and having Wayne there. It really built a strong fanbase. Then they managed to carve out rights when they did their digital distribution. That’s something we always try to do is carve out that right to allow the filmmakers to exploit the film through their website. They made it a destination page. One of the biggest revenue generators was actually their online store, where they sell books and prints and signed movie posters. There was a huge spike in traffic when the film launched on Netflix. People Googled the name of the film and the first thing that pops up is the filmmaker’s website. They really spent some time on the website.
S: There’s this growing overlap of screenwriters who are also becoming filmmakers themselves, because the barrier to entry is getting lower and lower. The ability to self-distribute has grown. What opportunities do you see in this evolving space for screenwriters specifically? If you had to give advice to an unproduced screenwriter who really wants to get their script into the right hands or they want to write a script that would be appealing in this new space, what recommendations would you have?
D: With the Generation Z writers, I like that there is this large audience that doesn’t have a lot of content geared toward them, and they’re already connecting with social media as an awareness builder. Let’s use that as the key to creating new content. It’s a no-brainer to look at social-media stars who have millions of Vine followers or millions of Instagram followers and basically cast them in content that is specifically geared toward that audience. Ask yourself, “Is there a pre-existing audience online that you can build content for?” It doesn’t just have to be talent. You can build content that would be appealing to this audience in a narrative feature form. There’s not a lot of feature-length content for them.
S: Do you think feature-length content is appealing to them? They may have grown up with short form content and short attention spans.
S: Any other words of advice for screenwriters? At the end of the day, they are the ones creating the blueprints for these projects.
D: That’s pretty early. Once we have a completed script or any type of teaser or sizzle, there’s always crowdfunding, which a large number of our filmmakers have used to generate awareness. And to raise money, but I think it’s more about generating awareness. Also, organizational partnerships. I met a group of filmmakers at a Free Minds seminar, which is a libertarian think tank. A lot of the material or themes that they were working on very well could have institutional partners and potential companies that may be willing to provide grants.
S: Thank you very much for your time. It’s a brave new world for content creators, and it sounds like you guys are right in the thick of things.
D: Yeah, I like it. We’ve just seen a lot of interesting new content, all at the micro-budget level.