Samara: Hello and welcome to the FAME Law Students’ Association’s podcast: The Brief. For the uninitiated, FAME sands for the Film, Art, Media, and Entertainment. The FAME LSA is a group of students from Melbourne Law School who are passionate about the arts and culture.
In this podcast series, we chat with lawyers and artists working in the creative industries, learning about their daily work, career development, and topical issues facing the industry.
In today’s episode, we interview award-winning entertainment lawyer Shaun Miller. As you will hear, cinema is in Shaun’s DNA, and with his 20 years of experience as a film and entertainment lawyer he is a treasure trove of insight into the industry.
Shaun shared with us what lead him to establish a sole-entertainment law practice, how the Covid-19 pandemic impacted the industry, and many inspiring words for budding entertainment lawyers. We hope you enjoy it.
Samara: So, thank you very much Shaun Miller for joining us for this interview about ‘A Day In the Life’ of an entertainment lawyer. For our conversation today, Sean, I wonder if you could provide a bit of detail whatever you said an entertainment lawyer actually does. So who are your clients, and what sort of work do you do for them?
Shaun: Yeah, well when we talk about ‘an entertainment lawyer’ there’s actually subspecialties within entertainment law. So some entertainment lawyers – and I’m one of them – does legal work for film and television productions. Other entertainment lawyers focus almost exclusively on music law – which I don’t do at all.
Shaun: So I do Film and TV and then others do music laws in entertainment law. There’s a lot of subspecialties. But I do, even though as I’ve said I’m in film and television, I do a smattering of other areas.
When describing what an entertainment lawyer, what a film lawyer, does I describe it very simply – I say when you see the credits at the end of the film, I say: well, every one of those credits has a contract attached to it. Not many people sit and watch the credits at the end of the film. I do because I like to see who did what and often recognise names, but if one was just sit and watch the credits go on for several minutes, one would realise that the work of an entertainment lawyer in film is quite extensive… because all of those contracts exist in relation to making the film.
Shaun: That’s the simple explanation.
Samara: Clearly entertainment law has so many sub-issues within it. Which is really exciting.
Shaun: Correct, correct, and you know sometimes entertainment law also bleeds into media law so you’ve got issues like defamation, particularly if a film or TV program… like one case in point at the moment in the last few weeks on Channel 9: Informer 3838 about Nicola Gobbo – one of the esteemed graduates of Melbourne Law School haha – so there would have been a lot of close attention paid to defamation issues.
Samara: So we should put the ‘M’ and the ‘E’ together in FAME.
Shaun: But also the role of the film lawyer often crosses over into giving commercial advice, so advice about everything from raising finance for a film – whether it’s to government funding bodies or for private investors or sometimes even people providing crowdfunding – so financing the film, and then marketing and distribution of the film. And that sort of commercial advice isn’t strictly legal advice that you would have learnt at law school or read about in law textbooks it’s really yeah, just commercial – just sort of business SOMETHING that you pick up over the years in the film industry.
There’s an expression in the film industry: ‘If you want to be a filmmaker in the afternoon, you’ve got to be a business person in the morning’, so often even if I’m advising on the making of the film from a legal point of view, it’s also a commercial point of view.
Samara: Excellent, thank you. My next question for you Shaun is – at what stage in your career did the law and the entertainment industry start to overlap? And I wonder if – I mean you have elaborated on the fact that you obviously need to have a commercial awareness – but I wondered if you had done any practicing in any other areas?
Shaun: I grew up with a background in the film industry because my mother, Natalie Miller, runs the Nova Cinema with her business partner. And when I was younger, she would go to the Cannes Film Festival every year – and she’s been going like 40 years in a row – and she goes to the Toronto Film Festival as well so I would always hear about the film industry, and it was spoken about at our dinner table. And then back in the early nineties, when I was doing what was then called ‘Articles’ at Mallesons and I needed an escape I went with my mum Natalie Miller to the Cannes Film Festival and I thought this is so much more fun than sitting in a deposit box in a glass building, sort of doing very low level legal work. So, I was very enamoured with the film industry. I always had been, but going to somewhere like the Cannes Film Festival which is the epicenter of the world film industry was just so exciting, and I finished up at Mallesons, and then I worked at the ACCC for a couple of years. To cut a long story short had this Geronimo moment: I thought, look I’ve got the law degree, I did fairly well in my law degree at Melbourne Uni. I’ve got a commerce degree as well, which is the business background, and I have a really good understanding of the film industry going to Cannes Film Festivals, going to the Sundance Film Festival, working in the industry… and I thought I could just combine all of that into working as a film lawyer, because I’ve got the commercial background in film, the legal background, the practical background.
I got a job with someone called Bryce Menzies – who’s like a guru in the film industry – and I ended up working for Bryce for ten and a half years and really just learned, you know I mean I ended up being a partner at Marhsalls and Dent Lawyers and then nearly 10 years ago – it’ll be 10 years in September – set up my own law firm, a sole practice law firm called Shaun Miller Lawyers and that’s what I want to keep doing – just running a sole practice law firm.
But, you know that when I really decided to be a film lawyer was probably not until… my late 20s, so it’s kind of funny how life turns out. I say a compass always finds its true north, and if you’re feeling lost in your startings of a career, I like to say even if you feeling lost and don’t know where you go and you’re on your way there – so just sort of, you know, things have a way of working out.
Samara: That’s wonderful advice, that does sort of lead into my next question of how your previous study and experience has informed your current practice of running your own entertainment law firm?
Shaun: Well, obviously to be a lawyer – whether you are running your own firm or in a private practice or in-house or working in the public service sector – to be a lawyer you obviously need a law degree, you need to be admitted as a lawyer. There’s a Mark Twain expression which is: you don’t want to let your schooling interfere with your education. So, even though it’s very important to be schooled as a lawyer, you really learn how to be a lawyer when you’re actually practicing law and it’s very hard initially when you’re straight out of law school – and even the JD students would have probably been students all their lives, might’ve had some gap years here and there. And then suddenly thrust into the Big Wide World, and it can be a bit overwhelming. But, you’ve just gotta persevere at it, and, you do learn as you’re working on the jonb, there’s no doubt about that. Also, having combined my degree with a commerce degree I had a business background in the sense that, you know, I did subjects like accounting and economics, and marketing and statistics, and economic history which all sort of count for something looking back. But also, I grew up in a family that ran film business so it was in my DNA, I ate it for breakfast.
So, setting up my own law firm – you can’t setup your own law firm a year out of Law School, I just don’t think you have the experience. Some people go to the bar a few years out of finishing Law School, having worked as a solicitor or a judge’s associate or whatever, but to set up your own sole practice law firm – I just don’t think you would have the network of contacts to even get a client base, to be honest.
I really enjoy the long-term game – this life is long, life is long, and you’ve just gotta stick at it.
Samara: It sounds like a great goal. And are there any advantages, and to counter that challenges, that stand out for you in having your sole practice?
Shaun: Look, I joke with people – but I’m actually serious – I say I work well in a team as long as I’m the only person in the team. Because, I don’t have any support staff, I’ve got no business partners, I’ve got no junior lawyers working for me, so I just get on with it. And it’s not that I’m a control freak, but I feel if I had to start delegating work and explaining it, and then correcting it, with junior lawyers – I may as well do it myself. So – I like the freedom and flexibility of working, practicing, in a sole practice law firm. If want to get into work late no one’s there to say where or why are you in late; or if I want to… you know, it just just gives me the flexibility in the end and I don’t have to confer with anyone on negotiate with anyone I just get on it, which which is really… which means I’m not like a lot of other law firms who employ junior lawyers and leverage off them to make money off them, because really anything I invoice goes to me, but I’ve got to cover all the expenses as well.
But I’m not making money by leveraging of other lawyers – but, I don’t care because it’s not all about the money: it’s about the freedom, and the flexibility and doing it may own way, which is what I like.
Samara: Thank you. We were talking about – before the interview started – the arts and entertainment community is obviously experiencing very unique challenges at the moment resulting from the Covid-19 pandemic. Can you talk to some of the legal challenges that are currently being faced by artists and creative in the industry?
Shaun: Yeah, well, in the case of films and TV productions, but let’s focus on narrative drama films. All productions have stopped at the moment – I understand Neighbours are doing a bit of shooting in a very sort of novel way – but generally all film and television productions have been stopped in their tracks. Now, my job as a film lawyer in getting all the contracts ready for the production, are done in what’s called the pre-production stage of the film which is generally the 10 weeks leading up to the actual photography production of the film. Now, because all of these productions have been stopped dead in their tracks, and have shooting that’s been delayed until much later in the year at the earliest – there’s not the work to do in the pre-production stage. So there’s that aspect. Now, that just trickles down into the whole industry: actors who were lined up to do work aren’t getting employed; all the crew don’t have jobs and they’re often freelancers who work from job to job; people who were potentially going to invest in films because they themselves have been smashed, they might even be relatively well-heeled potential investors that… I had one who – obviously I won’t say the name – but they own a shopping centre in Queensland and that’s been completely smashed. So they were potentially going to invest in a film with a six-figure sum, and then they had to withdraw the investment that hadn’t been paid yet, just because they’ve suffered financially.
So, no-one’s immune, or hardly anyone’s immune from, from the financial impact of the Coronavirus. And it’s also affected film distributors, because film distributors distribute films to cinemas and of course all cinemas have been closed, and then that affects all of the casual staff at the cinemas. It just ripples out everywhere, it’s just been an absolute disaster – and that’s just the film industry. If we talk about other areas of the entertainment industry like… the head of productions: closed; the Comedy Festival: closed; the St Kilda Film Festival: that’s going to go online in June; the Melbourne Film Festival’s been cancelled. All the international film festivals like the Cannes Film Festival which is usually held in the middle two weeks of May, obviously that’s not going ahead – and on it goes.
So it’s just had an amazing, terrible, ripple effect on the industry – even think of the comedy festival being shut down, you know that affected all the performers, it affected the producers of the shows, the support staff, the venues, and then that leads into the whole hospitality industry because a lot of the entertainment industry – such as when the Comedy Festival is on, or the Melbourne Film Festival is on – that draws people to the city, they all go to restaurants and cafes and bars, so it’s all… all just one big disaster to put it mildly.
Samara: Yeah, it’s definitely been quite… it’s been very devastating.
Shaun: I’d imagine for students at Melbourne University, including the Law School, a lot of the casual employment in hospitality and entertainment in the arts have been affected.
Samara: Yeah, absolutely. It’s definitely highlighted the far-reaching impact to just one industry, and also showing how important it is.
Shaun: Yeah! But, the other thing I should quickly mention – well, I don’t want to go into the details of the JobKeeper program – but you’ve got to be employed as a casual at least 12 months. People like actors and freelance crew whether they’re cinematographers or editors or you know. They were employed job-to-job, they haven’t been employed for 12 unless it’s something like a TV series like Neighbours or Home and Away but generally on film and TV Productions no one’s working for 12-months, you’re working maybe for like 3-months so that means one of the criteria of JobKeeper – that you’ve got to have been a casual employee for at least 12 months – so people who work in the Arts industry are disadvantaged by that. Just to add salt for the wound, you know, as if it wasn’t bad enough.
Samara: Oh, yeah, absolutely – and it’s important to be aware of, exactly as you say, how people in this industry don’t fit this mould that has been a lot of other industries.
Shaun: Correct, correct.
But look as a film lawyer, I should just add what government funding bodies like Screen Australia are planning on doing while there’s not a lot of production happening is putting more money into the development of film and television programs going to the development of, you know, writers writing scripts and you know allowing people to maybe option the film rights in various books.
So I have, and I will continue to have, work coming from the development stage of the production – that’s not the pre-production, that’s just when the scripts are being written and the project’s being developed. That’s kind of on a much smaller scale work I have when the film or television production’s actually being produced.
But development work still has to happen, and we might get some very good scripts out of this – because people have time to just sit and write their scripts, develop their projects, and let’s see what comes out of that,
Samara: Yeah I definitely hope that people have been able to get the creative juices flowing, even though it’s hard when there’s little stimulation ‘cause you’re not doing very many things.
Shaun: I know, I know. I saw the film, the Sam Mendes film 1917, a few months ago when cinemas were still open and I thought – god, this happened over 100 years ago, and I’m thinking with the coronavirus in 100 years’ time I think they will still be talking about this, and reflecting on it, and writing about it in books and making films and TV shows. It sort of, you know, it’s of the time and I don’t think it is going to be forgotten very quickly at all. I think it’ll just feed into the culture for a very, very long time.
Samara: I agree for sure. On a different note – technology has developed at a much faster rate than the laws that govern technology…
Shaun: That’s true.
Samara: … And I wondered how this, if it does, impact the way in which an entertainment lawyer is or a film lawyer is providing advice?
Shaun: Well, I think one of the main points about technology developing faster than the law is previously before the digital age, it was very difficult to pirate. If you wanted to see if film it was either on at the cinema or you watched it on TV, basically, or you might have got it out on the old VHS and then DVD system. But now, it’s so easy to pirate films with the technology that’s out there that that is something that is very hard, you know, for the law to control. Even though copyright law says very clearly, you know, ‘if you pirate you are breaching copyright’. That’s the law, but then there’s the actual what’s going on out there in the suburbs or in the city, you know, about people pirating films.
I think piracy has been curtailed a bit lately because people realise they can consume films very inexpensively and at a time they want, so it’s almost not worth their while to pirate films. But, it’s still, it was, and it has been an issue at least for the last 20 years. And another issue is having films geo-blocked so you can be – as I understand it, I’m not a techy – but you can Geo block the internet so film that say are only shown in Australia, and not beyond the borders of Australia but then, or films might only be shown in the United States and theoretically people in other territories can’t access that until the films are shown in other countries, in other Territories. The people have this thing – you’ll probably know this because you look like you’re a millennial – people have this thing called a VPN. Have you heard of that?
Shaun: It’s a way – it’s the way you can circumvent geo-blocking. Every time the technology is there to sort of help enforce copyright law by having, by making sure people don’t breach copyright and make unauthorised access – the technology then jumps ahead another step. It’s like a game of cat and mouse, the technology jumps another step and you know copyright can be breached easily so… Yeah, I just think it’s partly cultural as well, I mean people feel – you know if they steal sort of loaf of bread from the bakery that’s theft, but if they download a film for free people generally don’t feel they’re stealing anything because they’re not depriving anyone else of that. There’s one loaf of bread that you steal, but if you download a film you’re not depriving anyone else from downloading that film whether they pay for it or not. I think, you know, there’s been campaigns by industry bodies just try to change that culture but maybe, I don’t know, I watch millennials watch those ads and they just laugh at them – so, you know, what can I say –
Samara: I definitely remember those ads from DVDs back when I was a kid, and they terrified me – I never wanted to pirate hahaha. But yeah, it’s really interesting what you say about culture and the fact but somehow we’ve developed this idea that it’s permissible, or it’s a bit cheeky but as you say it’s not comparable to stealing food or something like that.
Shaun: Yeah, or maybe the electronic products in JB Hi-Fi or something… But also with the law what’s interesting is in, back in sort of maybe 15 or 20 years ago and before then, people would, you know, actors would give their consent to be in a film so the film could be shown in certain media – let’s say theatrically and on television, maybe DVD, and maybe Airlines. But then with developing technologies and new media platforms coming around all the time, the wording was changed in film contract – so rather than referring specific media it just says, ideally it says, ‘all media, whether known or later devised’. In other words, every sort of few years, or yeah, every few years or every five years there’s another media platform that seems to come along.
Recently we’ve had VOD video-on-demand, all the streaming services and all of that. So rather than being caught – like what what they have now in film and television contracts is whenever referring to maybe it doesn’t specifically stay certain media such as cinemas, televisions, DVD, and Airlines – it just refers to all media whether now known or later devised.
Samara: Mmm, you’ve got a one-size-fits-all there. You’ve had, already, an extensive career in this industry – do you have any advice that you’d like to give to law students who hope to pursue a career in this industry?
Shaun: Well, when you’re a student at law school I would recommend doing subjects copyright law and media law, but also it’s just good to have some – a good foundation in basic things like contract law and employment law. By the way I should state – I do employment contracts all the time, and I never did employment law while at university. Nothing’s – nothing’s essential but really – even though I said I’m like a glorified contract lawyer, a lot of those contracts are employing people whether they’re actors or crew or a music composer. But certainly, it’s important to know about the fundamentals of contract law and to do subjects like copyright law and media law. But, you know careers go in all sorts of directions and sometimes you’re ahead and sometimes you’re behind and I just say – the race is long and in the end it’s only with yourself because, you know, serendipity takes a big part in developing your career – you’re working somewhere, and suddenly by chance you meet someone else who says they’re looking for a, you know, to employ someone in their media department and… you know, you’ve just gotta keep yourself open to the possibilities and opportunities that are out there and, as I said earlier, a compass will always find it’s true north.
You’ve also realise that if you want to work in entertainment law as a lawyer there’s a lot of different aspect you can work in: you can work in private practice, a smaller law firm that has a media department, you can work in one of the big mega firms like Allens and Mallesons, and then you can work in the government – for example you could be a lawyer at Film Victoria which is the Victorian state government film funding body; or you could work at Screen Australia which is the federal screen funding body, or you could work in house of a network, be it the ABC have a whole bunch of lawyers who work there, SBS has a whole bunch of lawyers – and so do networks: Foxtel has in-house lawyer, 7, 10 and 9 have in-house lawyers. So there’s all of that as well – an alternate law job can actually be a legal and business affairs jobs, so you know, there’s so much – you could work in private practice, you could work in a government position, you could work in house somewhere… also a lot of larger production companies engage an in-house lawyer. Companies like Matchbox pictures and Princess and Madman Entertainment – they all have in-house lawyers as well.
So, don’t just think that being an entertainment lawyer, you’ve got to work in the law firm – there’s other avenues you can go down to be an entertainment lawyer that don’t involve just working in private practice.
Samara: Excellent, thank you.
Shaun: You could also go to the bar, I forgot to mention that. Because barristers specialising in intellectual property… there’s a whole entertainment and media law aspect that often filters into that as well. So, a career at the bar is something else that would be an option.
Samara: Yeah, all those options are very inspiring and hopefully people who listen to this can think a bit more broadly or outside the box about what they do.
Shaun: Yeah! But it’s kind of like… often, you know, careers are really like a game of snakes and ladders because sometimes you’re in a good position and you’re enjoying your work but for whatever reason politics in a firm can change, or whatever, or sometimes you’re working in private practice filling out timesheets and – and you’re enjoying it, but then after 5 years you just get sick of it! And you just think: you know what, it would be better at working in house within an organisation like a private production company or within a TV network. When I was at Marshalls and Dent, I was very happy there and I left on really good terms, but it came to the point where the adolescent grows up and wants to set up their own law firm. And the same thing can happen – if you’re working in a private practice filling out timesheets you might be very happy in that environment, but then maybe after 5 years you think you know what I want to change I want to work in house at a production company or a TV network where, you know, the culture’s different and you move onto that. So, nothing’s forever – you’re not sort of, you know work shouldn’t be a prison sentence, it’s not a prison sentence, you can leave whenever you want to and, you know, as you go along sometimes careers only make sense after many years out of Law School and you look back and you draw the different elements together – which is what I did because I had been at Mallesons, I’d been at the ACCC, I’d worked in the film industry itself, and then I drew all those elements together with my law degree and my commerce degree to be a film lawyer.
So, you know, it’s very hard to plan ahead because you don’t know how life is going to unfold.
Samara: Advice for us all!
Shaun: Advice, that’s right.
Samara: Shaun, it’s been such a pleasure talking with you about your career. I’ve got one last question for you, which is: do you have an all-time favourite legal TV show or film that you want to share with us?
Shaun: Well, LA Law from the late eighties, I’ll have to say that one.
Shaun: I’ll throw in Boston Legal, have you heard of that show?
Samara: I’ve heard of it! Haven’t seen it. I’ll have to do that while we’re at home.
Shaun: Yeah, yeah, it’s like – it was, you know, back before you could x50 viewing, doing it on TV was like an appointment viewing. You either watched it or taped it.
Samara: Alright, well thanks once again Shaun for joining us!
Samara: You’ve been listening to The Brief with FAME LSA. This episode was hosted by Samara Jones, the theme song and sound was produced by Leah Alysandratos. A very big thank you to Shaun Miller for chatting with us. Special thanks to Leah Alysandratos and Coco Garner Davis for producing both the podcast and transcript. Thanks also to all the FAME LSA committee members and ambassadors for their support. And thanks to you for listening! If you want to hear or learn more about FAME LSA, like us on Facebook and Instagram, or visit our website at famelsa.com. If you’re a lawyer working in the film, art, media, publishing or entertainment space and want to get involved with FAME, we’d love to hear from you. Send us an email at firstname.lastname@example.org.