Behind the Curtain – with Stephen Curtis

As the Arts Industry bends in the wake of government funding cuts and covid-normal operations, Production Designers for stage and screen are facing new challenges. Additionally, designers are having to navigate a shifting culture in their contractual relationships with theatre companies. 

FAME LSA’s Laura McKenzie sat down with Stephen Curtis of the Australian Production Design Guild (APDG) to talk about shifting relationships between production designers and theatre companies, against the broader backdrop of Australia’s arts Industry.

Can you tell me about the work that production designers do and the usual terms of their employment with theatre companies?

The APDG represents both live performance and screen designers in Australia. I am Chair of the chapter of the Guild that represents live performance designers working in the fields of drama, dance, physical theatre, events and musical theatre. We conceive the world of the production on stage – how it looks, works and what it means. We work closely with the director to dream up everything you see on stage; the sets, costumes and lighting for the production. We then follow through to manage the making of the production with the theatre technicians and costume and set makers, right up to opening night. 

Live performance designers in Australia generally work freelance as sole traders and are contracted to the production company. Occasionally a designer might be on staff as an employee of the company. Some film designers also work within their own companies.   

Freelance live performance designers have traditionally had a very strong creative relationship with the company, working closely with them and their staff to make the production. It has been creatively symbiotic, where both the company and the designer are mutually dependent. Although we are technically not part of the company, we are working very closely within it. This relationship has worked very well for both the designers and the companies – we have been able to support each other to make the best possible production. 

Image: Cursed! Currently showing at Belvoir Theatre with set design by Stephen Curtis. Lynette Curran, Sacha Horler and Chenoa Deemal, image by Daniel Boud https://belvoir.com.au/productions/cursed/#CjnymqycvMw

How has this relationship shifted in recent times? 

Designers are noticing more and more that companies are trying to define us legalistically as ‘contractors’. While we do work under contract to the company, our working relationship is quite different to what we might think of as a normal contractor. For example, we work with the company’s staff to make the show, within the schedule the company sets, and are realistically working under their management. 

When the Guild has asked companies why they are wanting to define designers as contractors their response tends to be around fear of liability. I think many areas of industrial relations are being affected by this shift of liability and risk back on to the worker. By defining us as ‘contractors’ we would be expected to have our own liability and other insurance covers. Some companies are even trying to use the contractor definition to withhold paying the employer superannuation contribution. 

Do you think that the increasing strain put on the Arts Industry is contributing to theatre companies taking a stricter approach to enforcing definitions of ‘contractor’?

Yes, I do. Every arts company is under financial pressure, and even more so with reduced audience numbers due to COVID requirements to keep audiences socially distanced. But I don’t think this shifting of liability is really a financial matter. It’s more one of risk-aversion. Ironically the risk is not actually a significant one for the company, since the designer is covered by their insurances anyway when we are working in their premises, and most of the legal liability issues are specifically addressed in the contract. I think the change in culture probably comes more from the increasingly corporatized nature of the workplace and their desire to eliminate any potential legal ambiguity of obligation. But this is the same ‘happy ambiguity’ that is the key to the success of the co-creative relationship between companies and designers.

Image: The Secret River Set design, by Stephen Curtis from The Sydney Theatre Company

As a member of the Australian Production Design Guild, you often come across cases of young designers grappling with these contracts and what to do. What has been the Guild’s advice?

Yes, young designers especially are being thrown by these new clauses in contracts. We advise designers that these ‘contractor’ obligations are new obligations. We encourage them to go back to the company and ask why they are being asked to define themselves as a contractor. I have done this quite successfully – where the general manager listened to the argument of our mutual dependency and we were able to negotiate a fair and mutually beneficial outcome.  

We also advise that designers need to make their own decisions about risk-management and decide what professional insurance covers they need. For example, they might  decide to take out cover for when they are working in their own studios where they might not be covered by the company’s insurances. 

And finally, we advise that if they intend to sign the contract and accept the new liability obligations then they should add this cost to their fee. This is a new cost to the designer, and if the company is going to treat us like a contractor, then we need to add this new cost to our fees as a plumber or consultant would. 

What do you think could settle the confusion around the terms on which to engage Product Designers and set the new precedent for these relations going forward?

The Guild has informally sought legal advice and have learned that this area of law is very unclear. It would probably have to go to a test case in the Fair Work Commission to determine our legal status and contractor liabilities. These cases are notoriously very dependent on the fine detail of the employer/employee relationship. 

It is also possible that the legal environment is shifting a little under pressure from Gig-economy workers, and we may see some reversal to the hard-nosed pattern of employers shifting responsibility to their workers. I am hopeful! 

ImageL Georgia Adamson, Madeleine Madden, Frances Djulibing and Ningali Lawford-Wolf in Sydney Theatre Company’s The Secret River. Photograph by Heidrun Löhr/Sydney Theatre Company from The Guardian. Set design by Stephen Curtis.

The APDG manages to do a lot of advocacy and advising for production designers largely without engaging a lawyer. In what scenarios have you engaged a lawyer’s help? Do you feel there is more room for legal assistance and if so, what factors prevent the guild from accessing that support? 

The Guild is not a union and most live performance designers do not feel the MEAA Award really covers them. Most of the APDG’s advocacy work is in the form of advising designers on potential options of negotiation, and occasionally acting as an intermediary for them with the company. Theatre is a bit like a big family, and I have found most companies relatively amenable to negotiating a fair position when faced with a fair argument. When companies don’t do the right thing, word gets out pretty quickly. 

We have sought legal advice on the two key resource documents the Guild has put together for designers: the Standard Live Performance Design Agreement, and the Live Performance Guidelines. On both occasions this advice was provided pro bono. We also have an account with the Arts Law Centre.

We are a volunteer organisation and try to keep our costs down so that membership subscriptions can be contained. So, employing a legal team to fight the contractor definition in the Fair Work Commission has not really been an option for us. Should an opportunity for legal help arise in an affordable mechanism , we’d be excited to pursue that.

Finally, despite Melbourne’s lockdown,you’re currently working in Sydney on the set design for a show planned to begin in October! Can you tell me about this show and how it has adapted to the restrictions of the pandemic? 

I really feel for our Victorian members. We speak to a group of them every week to check in, and they are remaining stoic. Some have found ways to use the lockdown to plan future projects, but some have been really knocked by the collapse of the theatre industry. We were one of the first industries to lock down and will probably be one of the last to open back up. But there are some signs of theatres opening again. The first was in South Australia – STCSA opened Gaslight a couple of weeks ago, and I’ve started rehearsals for a new First Nations comedy at Belvoir in Sydney. Some of the creative team will be zooming in remotely, which will be a challenge. The audience will need to socially distance and wear masks, so the house will be at a fraction of the normal capacity. It will be very strange, but there is a tremendous will from us all to make it work.

Student Spotlight: ‘Bean Recordings’ Leah Alysandratos

Leah is a first year JD student at Melbourne Law School and an ambassador with FAME LSA. Matt and Caiti from FAME LSA sat down with her, to discuss her small (but growing) business Bean Recordings, an independent Melbourne-based record label. From her passion for music and the arts, to pursuing a law degree, find out more about Leah below.

Tell us about yourself and your new business Bean Recordings!

I’m a Melbourne girl, born and raised, who has always been keen on music. My mum got me into playing music when I was young in an attempt to get me out of my shell. Music is a safe place for me to escape the world a little. 

I wanted to take my passion and love for music and make it a more serious part of my life. My first ever job was as a street busker. If music got me out of my shell, busking made sure that I still had thick skin! I busked for two years on a wide range of instruments. 

My passion for music took me to the VCA to study Interactive Composition. Whilst studying I was producing and creating music for film, TV, animation, EDM and many other projects. 

As I worked my way through my course I had people ask me to work on music production for their projects; the vast majority of that work were ‘favours’. By the middle of my third year I had built up some skills and decided that I deserved to be paid for the work I was doing.

At the same time, a friend of mine, Daniel James Johnson,  was recording for musicians and had become quite a successful popular music producer. We thought it would be awesome to start a recording/production business together, combining our skills and resources to provide an important next step for our colleagues who make money through gigging. 

Daniel playing guitar

From there, and with the help of a random name generator, came Bean Recordings! We like to think of us as embracers of all kinds of beans; representative of all different music styles and people. 

How do you describe Bean Recordings?

We are a niche Melbourne record label and production company focused on up-and-coming musicians looking to get their sounds out there and into the big, bad world of music. 

Our purpose is to be flexible, mobile and affordable. Where it is best, we love to come to you to cater to each person’s specific needs. We want nothing more than to record your most natural and comfortable sound. 

Lots of young musicians are concerned that they don’t have a lot of liberty when it comes to music production. Something that’s really important to us is bringing the tools you need so that we can record your sound the way you want it. We lay down tracks, edit and eventually distribute the tune onto multiple platforms for consumption. 

In addition to recording and producing, we provide music industry advice. Many of the people that have come to us are people who are just starting their journey into the industry, so we like to provide as much support as we can. 

Artist Fliss Dart’s EP launch

What were your biggest hurdles in setting up your business?

The legal and financial logistics of registering as a new business were the biggest hurdles for us. As we passed the first year mark, we have been doing our best to ensure we continue to grow and reach more people. Along with this hurdle is the management of a plethora of social media accounts. As of yet, we haven’t outsourced any of the work so it’s still a lot of work for both of us. 

When you personally invest in something, those first few months are crucial to staying afloat and keeping momentum. I think we are already through the biggest hurdle in that sense, as we’ve made some really significant progress. Due to the effects of COVID, we can’t record with people, can’t have gigs or any other events. This means that a lot of our projects, especially fundraisers, have been put on pause or cancelled completely.

To compensate we’ve taken current tracks and slowly produced them, releasing them when we can. We’ve started Instagram live sessions because gigs aren’t really a thing anymore – the next one is Saturday 10th October! We have also released merchandise on RedBubble which has helped a little.

How has your law school experience shaped Bean Recordings? 

It’s been a difficult ride. Law school can be tough. Even though we only had three subjects in the first semester, it was still hard to manage time. To keep on top of things, my business partner, Dan, and I have weekly meetings. Most importantly, we make sure that we have time to study, have mental rest, work, and play! 

Law school has helped me think about the business from a professional and employment services perspective. It made me think more about how we create agreements with artists as well as how we present the consulting services we provide. 

So far it’s has been nothing but an asset to the business, helping me add something of substance to our existing business that really helps people cultivate their passion. 

What is the most important part of music for you?

That therapeutic feeling that music can deliver is probably the most important thing to me. As I said before, music got me out of my shell and taught me to be strong. If I am stressed or anxious in any way I sit and play, or listen to music. 

Performing also gives you an opportunity to give back to the people around you. 

Who is your biggest music inspiration?

My parents don’t play music but they both love listening and being around it. Dad and I share a love for live concerts. There is a big deep appreciation for music in my family, my siblings have taken lessons too, and it’s something we all share.

Do you have a favourite album?

The ‘Bean Recordings’ Compilation album!! – we have just released our top tracks from the first year of business. Definitely grab yourself a copy! On sale now!

What are you most looking forward to in the next 12 months at Bean Recordings?

We would love nothing more than to see live music flow back into Melbourne. We are looking forward to holding a fundraising concert and raising funds for charity in areas we are interested in. 

We are currently recruiting volunteer writers to start a new segment of our business. We want to start publishing content to inform people more generally about the industry, what is happening and who is doing it! If you are at all interested please let us know!

What is your dream for the future of Bean Recordings?

Best case scenario is an enormous building, possibly in the shape of a bean, with dedicated sections to all aspects of music production. That’s a big dream though. In the end, I hope to keep a flow of artists in a way that’s manageable and growing our team to better serve the artist. We love what we’ve started but are so excited to see how it grows. 

Find out more about Bean Recordings here.

Photos supplied by Leah Aly.

Episode 2: Film, TV and Media Lawyer Caroline Verge

CAROLINE VERGE

THE BRIEF

SAMARA JONES (FAME Careers and Sponsorship Coordinator): Hello and welcome to the FAME Law Students’ Associations’ podcast: The Brief. For the uninitiated, FAME stands for Film, Art, Media, and Entertainment. 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 the 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, FAME ambassador Leah Alysandratos interviewed the highly influential and experienced film and TV lawyer, Caroline Verge, principal of Verge, Whitford & Co. Caroline shared with us what led her to the law, her experience with Women in Film and Television Australia, and her thoughts on how the film and TV landscape may look moving on from 2020, plus many excellent career tips for budding film, television, and multimedia lawyers. We hope you enjoy it. 

LEAH ALYSANDRATOS(FAME Ambassador): Thank you so much for joining us today, Caroline, it’s really lovely to have you here with us. 

CAROLINE VERGE: It’s my pleasure. 

LEAH: I guess we’ll get straight into it. So, the first thing I just wanted to ask you was what drew you to practicing law and specifically practicing in film, television and multimedia law?

CAROLINE: Well, when I was at school, the choices just really weren’t available. So, if you were good at reading and writing, you basically did law. And you know, if you’re good at maths and science, you did medicine. So I didn’t have much of an option – and I made my decision probably in late primary school and just never changed it because there was never anything that appealed to me.

And I had lawyers in my family, so I just took it from there. And as for film and television, that was complete chance – I was working at the Australian Government Solicitor doing proceeds of crime and insolvency and some tax work, and I helped my boss hang some paintings one day – so when an arts organization asked for someone to be posted there, he went “oh, I’ve got just the person: Caroline.”

And he sent me down and I was actually shocked in the beginning because I thought there was no world outside the Supreme and Federal Court, but I ended up enjoying it. I liked the people and I picked up related clients like SBS and the Australian Tourist Commission. So I spent a couple of years doing that and then I got a job as manager of copyright at ABC Television. That really, I guess, cemented me on that trajectory because after that I went to the Australian Film Commission – and I don’t know if you know, but in your career you’ll have one or two jobs that are just dream jobs – 

LEAH: Yeah. 

CAROLINE: and the Australian Film Commission job was one of my dream jobs.

LEAH: Wow. Yeah. And it really just fell in your lap in that way? You just sort of thought – this is the way my destiny’s been carved out since I was in primary school. This is what’s been handed to me and wow, that’s a dream. I didn’t even know that was there. That’s a really lovely story. 

CAROLINE: Yeah. Well, let me say one other thing, which is that, in my opinion, it doesn’t matter what you specialize in, when you become good at something, you just enjoy it and you stay on that path. So when I was doing insolvency, you know, I really liked insolvency and I was very comfortable with my court work and I knew the Act and the regulations – and so it doesn’t have to be something that you think you’re going to love.

I would suggest just if you’re offered some specialty, sometimes just give it a go. Yeah. And see what you feel about it – 

LEAH: It’s like that old adage where they say work isn’t work if you love it or something like that, something like that. And that really ties in here. 

CAROLINE: True. 

LEAH: That’s really, really interesting.

So, given that you have such experience in in-house organizations like ABC and the Australian Film Commission, would you have any suggestions for the students listening hoping to work as in house lawyers in the film industry?

CAROLINE: I strongly suggest that you get general experience first. When you go in-house, you think that you’re going in as… well, for example, when I went to the Australian Film Commission, I was the film development lawyer. So I was purely employed to do grants and investments in film development and production. However, when people see a lawyer there, they will ask you a wide range of questions and you need to have the confidence to take charge of answering those questions, or, I mean, you can always brief out, but you need to be on top of a lot of things.

So I suggest have some general experience before you go in-house, then you’ll find that you need to be a bit cautious about too strongly identifying with you or the company that’s engaging you or the organization that’s employed you. You need to always remember that you are a lawyer and you have a duty to the courts.

LEAH: Yes…

CAROLINE: So you can’t just basically become more of a business affairs person, you have to maintain that legal distance. Having said that – being in-house is a wonderful, wonderful career opportunity. It’s so fabulous not having to do timesheets and it is wonderful, it’s fantastic to really become so familiar with the client’s business and structure and goals. 

LEAH: Yeah. So I guess there’s a really good insight there in the sense that people will see you as a lawyer before they see you as a specialized lawyer. 

CAROLINE: In a way – they expect you to know your specialty, but they will also just ask you incidental questions. For example, when at the Australian Film Commission, I ended up taking on the role of FOI officer (you know, Freedom of Information) because, well, nobody else wanted to do it, but they just assumed that I would be able to do it.

LEAH: Because you’re a lawyer.

CAROLINE: Yeah, that’s it. And people would ask you about their wills, which was not part of the job at all, but you need to be able to give a reasonable answer to a lot of questions so that people maintain the confidence in you. A lot of what we do is appearing on top of things, funnily enough. 

LEAH: Yeah. That’s a… that’d be a really hard balance to find, especially where they’re asking you questions not within your allocated job – but in order to maintain that relationship, you sort of have to find a way to, like you said, to maintain their confidence, that’s really… I’d never thought of it like that before, actually.

CAROLINE: And you also need to be careful because if you give legal advice, you need to be insured for it. There’s lots of things to think about. 

LEAH: Yeah. Well, well I guess that ties into the next question – to be a successful lawyer working in the film and television industry, not only would you be able to have to answer those difficult questions and maintain those relationships, but there are probably many other essential skills and qualities you need. What would you consider those to be? 

CAROLINE: One of the key changes in my personality that I had to work on when I left litigation and went into commercial work (film and TV) was that in litigation you win or lose. And I had a very strong mentality of needing to win – and I actually went to Harvard and did Roger Fisher’s negotiation course – 

LEAH: Wow. 

CAROLINE: and it took a while to sink in, but it really changed my personality a lot because in film, the deal is important, but you have to keep an eye on the ultimate goal which is to make a project. 

LEAH: Yeah. 

CAROLINE: And I have seen projects fall apart because the lawyers started jiggling it 10 paces. And you, and you say stop, you know, is that really critical to get this film made?

The other thing that’s important is that the Australian film industry is pretty small and you have to be careful not to burn your bridges, and sometimes a strategic retreat is more important than a victory on every point. 

LEAH: Yeah. Keeping that wide, wide lens perspective of everything going on. 

CAROLINE: Yeah, exactly, that’s a great way of putting it. 

And I guess another essential quality rather than a skill is to maintain your integrity. I’m not saying that lawyers don’t have integrity – but in the film industry in particular, a lot of our money comes from taxpayers. So you have to be completely transparent. And sometimes people say: ‘Oh, let’s just do a side letter about this aspect of a transaction.’

And you have to say, yes, we can do a side letter, but we’d have to disclose it to all the other parties or in particular, the agencies that are investing taxpayer money. So complete transparency.

LEAH: Integrity, particularly professionally as well as personally, because he can’t have it either way. You’ve got to be the person, the right person for the job, both in yourself as well as as a lawyer. So that’s a really great piece of advice I think for a lot of people listening: not to forget who you are as a lawyer and on your own.

And I guess continuing on the talk about the industry, the film and television industry, as we know it has been disrupted by this current pandemic, we knew this question was coming, and we are seeing signs within the industry of working within a COVID normal, we’re seeing a lot of movies being made with social distancing and things like that.

How do you see this landscape adapting as we keep moving forward? 

CAROLINE: I think a lot of scripted projects are going to be forced out – smaller budget scripted projects. The reason is that the bigger production companies, you know, your Matchboxes, can self-insure – they can continue production even without COVID insurance, but with the smaller production companies that can’t afford to self-insure they’re going to be reliant on the Screen Australia TIF fund.

And that is a wonderful initiative of Screen Australia’s and I think everybody’s really happy with it. However, it is selective. So it’s another hurdle to get through. And, you know, we know that Screen Australia doesn’t really like horror movies and they’re quite often the ones that break out. So I think a lot of, as I say, drama projects might be forced to at least defer the start of production. 

LEAH: Yeah. 

CAROLINE: I think that there’ll be more feature docs and archival projects because they’re easy to pull together, even, you know, with social distancing. I have some clients who are doing an interesting thing where one of them lives in New South Wales and one lives in Western Australia – and they’ve had a script written and they’re going to do it online. 

LEAH: Wow

CAROLINE: So it should be great. 

LEAH: That’s really different.

CAROLINE: And so clever over them to just create work for themselves. 

LEAH: That’s definitely what you would call adapting. 

CAROLINE: Yeah. Yeah, absolutely. Absolutely. 

LEAH: That would encourage different genres to come out more than others that didn’t come to mind at all.

CAROLINE: Well you’ve got to be clever. You’ve got to always be thinking… these two are actually very, really smart operators. And the other thing that I see as a big issue with COVID, although it’s slightly more of an umbrella issue, is that I think the Australian Content Standard is at risk. We were hoping that the Pay TV channels would start to be, you know, required to maintain a minimum level of Australian first run drama and documentary but now I think even the free to air broadcast is probably going to start lobbying really hard to get the Content Standard pulled back, which is terrible for Australian content. 

LEAH: So the integrity of the standard is really at risk here. 

CAROLINE: Yeah, I think so, because it’s much more expensive obviously to invest in first run Australian programming than to pick up programming from overseas or, you know, second cycle programs, they’re so much cheaper – why wouldn’t you, if you have to report to the shareholders. And particularly now that some of them – the media organizations – are owned by hedge funds. Well, they have no sort of deep support of the Australian film and television industry. So why wouldn’t they just be looking at the profit margin? 

LEAH: Of course. That makes a lot of sense. And I guess that ties into the next question where I was just going to ask you what other legal concerns do we need to be aware of or, you know, for the industry right now, or even lessons that lawyers such as yourself have learned about this experience. So just continuing on, what other concerns did you have? 

CAROLINE: Well, I think my key comment rather than a concern is that features are still treated as the premier format, and yet theatrical features just aren’t cutting it. 

Until recently you had quite a long period: a theatrical window – so you’d release a film theatrically, and then you might have 180 days before the next window opened, which might be TV, and then you’d have a window, and then you’d have home video open. And that could somehow, even though the feature never made its money with theatrical exhibition, it could create a word of mouth, but that’s really largely gone, I think, or going and going quite quickly and the windows have collapsed. So you can quite often now have something released in the cinema and also released online.

LEAH: Yeah. It’s almost less about that release experience and just more about having that straightaway access to the artwork or the project/the ease of it, I think, especially with new streaming platforms, which is not even new anymore, but Netflix and Stan, there are more coming out and we’re seeing advertisements on television. People want easy and quick and cheap and it does compromise the integrity of that whole theatrical release. 

CAROLINE: It does people, and have such big TVs now, it’s enormous, and you can get big, you can go to 80 inches, but, I haven’t been brought up in it. I don’t like anything better than sitting in a dark cinema. And you know when the curtains just go a little wider, the ads have finished and the movie starting – I get that excitement every time, I just love it real when the lights dim and the curtains open a little bit.

But now, uh, people don’t seem to have that. And in fact, I’ve noticed that people talk through a movie now. Whereas you never used to have that. You’d always be completely quiet as soon as the film started, but people don’t actually realize that they’re not in their living rooms. So I think that’s the big change and I can’t tell you how it’s going to play out.

But I do know that I’m working on some fantastic television – and I think funding should really perhaps change more towards TV. And I guess online, well.

LEAH: I guess, I guess we don’t know yet. We’ll have to see, but I do agree with you that, that whole… there’s been a dissolve in the interest of that theatrical experience in the mainstream consumer market for film and it’s gone towards the whole aspect of – I can have a theater experience at home on my couch, in my own comfort with my bathroom right there, why wouldn’t I just do that? So there’s definitely a big shift there and it was almost like COVID-19 has encouraged it because we don’t have any option to otherwise.

CAROLINE: And the other thing that I think needs further attention – and anyone that knows me will tell you this is my complete hobby horse and I’ve been on about this for years – and that is that we need racially blind casting. Instead of having, you know, the doctor played by a white woman, what would it matter if it was played by a Chinese man, or if your race is irrelevant to the script, then it shouldn’t be a part of the casting.

LEAH: I agree with you 110% here. Yup. There is absolutely no need for it anywhere – racial stereotyping in casting at the moment. I don’t understand why it’s there. 

CAROLINE: It’s subconscious bias still, and you look at people complain about SBS because they’re having you know, white, Anglo-Saxon programming during peak viewing times now, and you go hang on, what was your remit again?

LEAH: Exactly. Exactly right. I guess that does tie into my next question ‘cause I wanted to ask you about gender equality in the Australian screen industry, because you actually were the Vice President of Women in Film and Television Australia. What stood out to you as the key barriers to gender equality? 

CAROLINE: I think I might need to update my bio, because I’m also now on the board of Dame Changers which is an organization for entry level filmmakers and enthusiasts. And they do a great job by creating a space for women in film, running the WOW festival each year, and in fact, the current WIFT in New South Wales is really impressive, and the things they do – putting out newsletters and bringing people together to find out what’s on – Dame Changers is a networking and mentoring organization for mid-career filmmakers, and mid-career is when there’s a real dropout zone for women. And I think what has… the barriers that have stood out for me are the same in all professions, to be honest, which is that, you know, women pull out to have children.

Film is high risk. There are long hours. You have to travel to go on set – it’s freelance. And it’s very hard for women to juggle all of that with kids, unless they have someone at home as so many men do. Well, one other point I would like to make there – and I don’t think it’s perhaps recognized enough – is that there’s a lot of work being done at the moment to promote gender equality above the line. Screen Australia has its gender equality goal of 50% female lead writer, director, producer in its projects – but there’s also a big issue below the line in the crew area. And there it’s really similar to just the ordinary trades where it can, they can be a bit of a boys club, you know, if a woman wants to be a grip, how does she access that as a possibility because she hasn’t gone to TAFE with a group of guys, and then they’ve all gone into the film industry, but maybe she has, and maybe that will happen more, but women traditionally don’t participate in trades. And that’s a big problem. And I think once you see more women below the line, do you know what I mean by that? 

LEAH: Yeah. And I totally agree. I totally understand what you’re saying. 

CAROLINE: Once you see more women below the line, they’ll create their own networks and there’ll be less unconscious bias.

LEAH: And just allowing women to work beyond the line, opening that opportunity then, and not letting them feel like it’s not an option. 

CAROLINE: I guess maybe there needs to be some attachment schemes that are geared towards women in those Crew positions. I know Screen West, well, the agencies all have crew attachments, but they don’t say, they don’t specify whether they have to be men or women.

One other thing, you know, you’ll know this as well as I do – I’ve mentored some young lawyers and women tend… no, it’s not that they don’t push themselves, but I think women see both sides of every story. So if, if a man sees a job and he thinks that looks interesting, I’ll go for it. And a woman, a woman will see a job advertised and we think that looks interesting, I don’t know if I’ve got all the qualifications for it. And it seems to be a real mental difference somehow in, I won’t say brain wiring because I’m sure it’s possible to train people out of it, but it is something I noticed very often in, well, in myself and then younger professional women. 

LEAH: Yeah. I understand what you’re talking about, because it’s an, it’s an easy feeling. Even someone like me coming out, going into a music degree or to a law degree, am I really cut out for this? Do I just take the chance? And you know, you got to try your best, not to scare yourself or intimidate yourself, but I can understand how that can still be a major playing issue here.

CAROLINE: Yeah. Yes. And then you get your dream job and you have imposter syndrome. 

LEAH: Yes, exactly. I always feel like I’m an imposter here. What am I doing in law school? What?  

I guess we should, we should just move on to some more lighthearted questions – I wanted to know what’s the film or project you’ve worked on that was especially memorable for you?

CAROLINE: Well, you know, I’ve been doing this since 1990. Yeah, so that there’s been a lot of programming under my belt. I’ve had some really terrible projects, so awful – let me say that if you’re in development and the co-producers are already arguing, or the producer and director are already arguing, walk away, it’s not gonna get any better.

LEAH: That’s, that’s probably the best piece of advice you can give to an up and coming production. That’s hilarious! 

CAROLINE: Yeah. Yeah. And then they come to you and they want you to be the mediator and I’ve actually – I am a mediator and I’ve done some film mediations, and everybody’s always so agreeable in the film industry that you have this wonderful honeymoon event where you spend a day nutting out the issues and then everyone goes, yeah, thank you. That’s great. Okay. It’s all fine now. 

It’s not, it never is – another one I wrote down was a film I worked on called Paper Planes. And it was such a pleasure because they’re a great team. It was a lovely project. It was a children’s film, which you don’t get nearly enough, and yet still a really interesting story. 

And it also had the contracting – this sounds a bit sad, but the contracting was really good and exciting because there was private finance, there were agencies, there were distribution and sub-distribution agreements. It was really diverse. And the producer was just so on top of everything, it was a real pleasure.

And then the third project I wrote down here is a TV series – it’s a three part series called Filthy Rich and Homeless which ran on SBS, just a few of those episodes. 

LEAH: Yes! I’ve watched a few of those episodes. That’s such a fascinating show. 

CAROLINE: It was fascinating. Well, I had to watch them all because I was assessing them for errors and omissions insurance.

LEAH: Of course.

CAROLINE: Not only did I find it eye-opening, I found it quite life changing because homelessness is so obvious in Sydney and you know, I’d always look the other way and walk past people. And now you think they could be anyone. There could be any reason for them to be on the street. And so I’m much more open to being a bit supportive.

And I thought it was incredible, and worth mentioning, that a TV show could have such an effect on me. At my age. 

LEAH: Oh, even at my age, I think we understand these issues a bit more, but you watch a show like that and you really are forced to understand something that you thought you had full knowledge of – when you just think oh, I really could be anyone that could have been any range of scenarios that put them there. Yeah. Really, really great series. And that’s really interesting that you worked on it. 

And I guess last one, do you have a favorite legal film or television show? 

CAROLINE: Yeah, I like that question. I like Suits, but really Suits is just a remake of the best legal show ever – which was Boston legal.

LEAH: Shaun Miller from our previous episode also loved Boston legal as well. I’ve got to get on it. 

CAROLINE: Yes, Shauny and I are very close!

LEAH: There you go. Thank you very much for talking to us today. I’ve really, you’ve actually given me so much to think about, and opened up my eyes to quite a lot of intricacies in the screen industry that I never would have thought about before. So thank you so much. 

CAROLINE: My pleasure. And thank you. 

SAMARA: You’ve been listening to the brief with FAME LSA. This episode was hosted by Leah Alysandratos, the theme song and sound was produced by Leah Alysandratos. A very big thank you to Caroline Verge for chatting with us and a special thanks to Coco Garner Davis for producing the 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 all learn more about FAME LSA like us on Facebook and Instagram and 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 would love to hear from you. Send us an email at general.famelsa@gmail.com.

Episode 1: Entertainment Lawyer Shaun Miller

INTRO

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. 

Samara: Okay. 

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.

Samara: Fantastic.

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? 

Samara: Yes.

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. 

Samara: Excellent.

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!

OUTRO

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 general.famelsa@gmail.com.

(C)opyright Chronicles with Kris Kotwicki

The Copyright Chronicles is a series of interviews with creatives from different backgrounds, focusing on their practical experience of copyright law. For our second installment, Caiti from FAME chatted to Kris Kotwicki from Creative Artists Law.

Before becoming a lawyer, Kris worked as a Senior Artist in the computer games industry for a major publisher. Kris specialises in information technology law, intellectual property law and telecommunications law, negotiating for and against the largest multi-nationals, banks and law firms in the world on deals whose values ran into hundreds of millions of dollars. Kris also advises on film law for productions both large and small. Kris has a Juris Doctor of Law from the University of Queensland as well as a Bachelor of International Business. He was admitted as a Solicitor in January 2007 and enjoys 2D and 3D illustration as well as photography.

What are the most common copyright issues you encounter in the video game industry?

Perhaps unsurprisingly issues around ownership of copyright are the most common issue that we encounter. Copyright is a form of intellectual property, which itself is a form of property, and that can, of course, be a highly valuable asset.

Developing a game is an increasingly expensive proposition and therefore the exploitation of a game’s intellectual property is of central importance to a game being successful.

Integral to this, is owning the rights in the game and having the proper legal arrangements in place. This is especially important because the development of a game is often a collaborative effort, so invariably multiple people are involved as well as multiple works. Where you have many moving parts, and sometimes, especially when starting out, an absence of the proper paperwork, it’s not hard to end up muddying the waters around copyright ownership. An ensuing copyright dispute can really grind a project to a halt, resulting in significant litigation costs and put at risk substantial investment.

In a similar vein, a developer may also feel that third parties are infringing on their copyright, or conversely, some third party may claim their copyright is being infringed by a developer. A lot of these issues stem for the generally poor understanding of copyright that exists in the broader
community.

How does intellectual property work in game development?

From a legal perspective, intellectual property plays a central role in game development and is one of the key areas of negotiation in many contracts that relate to game development. It really goes to the core of game development because a game itself is always composed of intellectual property, both in its contents and the tools used to develop it. Intellectual property is also relevant at all stages of the game development cycle, from pre-production right through to use by the end-user, it really is the life-blood of computer games development.

How do indie game developers and bigger software developers differ in trademark law?

The approaches taken by developers will tend to depend on their resources and how much they are willing to allocate to proactively safeguarding their intellectual property.

Registering trademarks is a time-consuming process and there is a cost associated with it that can quickly rise depending on how many trademarks, classes and territories a developer is looking to register trademarks in. A larger developer is likely to have more in-house resources to devote to addressing trademark protection at an earlier date as well as to enforcing their rights once registered.

The issue for small developers is that, where they do not take proactive steps, they can end up investing quite a lot of time and resources in branding their game without having checked if there are potential trademark conflicts. Depending on how far down the road they are, that can then be a costly and time-consuming process to rectify and they may find themselves embroiled in a lawsuit as a result.

So the key is really to plan ahead, which, even for small developers, can avoid many issues.

Why should developers sign a contract before starting work on a game?

It’s always best to get the paperwork in place before you start on a project because it will help everyone who is signing to crystallize their thoughts and intentions. Absent a written contract, there’s a higher risk that misunderstandings may exist between the parties and you may be forced to rely on, for instance, an oral contract that can be difficult to prove.

Many misunderstandings may not be readily evident when starting out because of many of the ‘what if’ scenarios that a written contract pushes the parties to contemplate will not otherwise be front and centre in people’s minds on day one.

Of course, some people will put off getting the paperwork in place either due to cost or not wanting to focus on it initially. One reason is that few people want to be thinking about legal issues such as termination rights when they are just starting out—after all, who wants to sit around thinking about divorce scenarios at the start of their marriage? What band wants to be thinking about splitting up when they are just forming?

You’ll be glad, however, that you did get the paperwork in place if you do end up having a dispute down the line. The cost of putting in place a contract will also pale into insignificance compared to the costs of potential litigation down the road.

Hopefully, of course, you go on to great success, and many of the provisions of the contract remain theoretical scenarios, however, just like taking out an insurance policy, it’s great to have something that can be turned to if the worst does happen.

How many problems can be solved by writing a basic contract between developers before starting development on a game?

A basic written contract will substantially lower your risk profile with respect to intellectual property issues. A contract is at its base level allocation of risk between the parties and if the parties have taken the time to negotiate that and sign off on it then you have a document that
can be turned to in the event of any dispute. This is invariably a better position than relying on, for instance, an oral contract that is harder to evidence.

It will, of course, depend on the specifics of the contract and how well it is drafted. A basic contract for a complex scenario isn’t necessarily going to address all the finer points between the parties, and such over-simplification can create its own problems. A common issue we see is that people write their own contract, perhaps by pulling something off the internet, they then think it means one thing when in fact it means another. It’s also of critical importance not just what is in the contract, but what is not. To that end, a little bit of knowledge can be a dangerous thing. The devil can be in the details with respect to intellectual property. Therefore it’s important then that the contract is tailored to the circumstances.

How do non-competition clauses affect employees who start an indie studio?

Non-competition clauses can be restrictive to employees who want to start their own studio. It’s important to note though that such clauses can be drafted in such a way that their scope is too wide and they are too-restrictive (effectively stopping someone from earning a living) and in those sorts of situations they may not be enforceable. It will depend on the drafting of the clause so if in doubt, have a lawyer review your employment contract so you can see where you stand.

How accessible is copyright law as it applies to video game developers?

It’s not particularly accessible. There are a variety of resources on the internet that go over the basics of copyright law, and they can be of some use in helping to acquire some understanding of the law. Despite this, however, in our experience, we find a lot of people carry a lot of
misconceptions about the actual law. Ultimately this comes down to the fact that copyright law is complex and you have to be careful not to apply the wrong law to your situation, for instance, it’s pretty common to see people mistakenly assume that elements of US copyright law, such as fair use, apply the same in Australia.

The nature of the games industry and IT industry is also that technology is constantly pushing forward and invariably the law is trailing a few years behind, so it can it be a challenge sometimes for games developers to ascertain how the law applies to their particular circumstances. New technologies, such as for instance, VR, AR or AI open up new issues.

In the end, the complexity of the law and the nature of the industry means it’s best to use a legal professional, not least because it will free up your time to focus on the actual game.

What is the difference in IP requirements between game developers vs publishers?

A publisher is going to be concerned with making sure they can distribute a developer’s game with the least amount of issues possible. They will not want to be sued by third parties for any failures of the game developers (such as the developer breaching some third party’s intellectual property), therefore their contracts will be centred around lowering their risk in relation to this. This, in turn, ties in the intellectual property clear title requirements of developers because they need to ensure they own or have proper licensing arrangements in place for any intellectual property that features in their game and that this is the case with any subcontractors who work on the game. In this way, the developer should seek to flow-on the risk to the relevant parties. Publishers, when distributing games also have to contract with consumers so will have legal considerations and contracts to put in place to govern those relationships as well.

Are there any ways you think copyright law can be improved to suit your practical experience?

I think copyright legislation can certainly be simplified to make it more accessible to the layperson. It’s worth noting though that copyright law is regularly being reviewed to see how it can be improved. Sometimes that can be challenging because copyright law also has to balance the interests of a variety of parties which may not always be aligned, so, for instance,
what is an improvement in the law for an author of a work may not be the case for an online platform if it, for instance, makes their business unworkable. In the end, these competing interests need to find a happy medium and the law is always striving to strike that balance.

How does Australian Consumer Law influence the video game industry?

Australian consumer law grants consumers a number of rights which are applicable to the video game industry given that they sell games to consumers, this also applies to online platforms to sell games to consumers. These rights are in excess to what you will find in some other countries, such as in areas such as refunds. So it’s imperative that businesses comply with those obligations and the ACCC has taken businesses to task in the past to ensure compliance.

How has the change of technology (the way we consume video games on mobiles etc.) affected the law around it?

As games become more technologically advanced and as society becomes more interconnected online there are inevitable legal ramifications and the ensuing need to update the law to keep abreast of those changes.

Games have come a long way since the days of playing PAC-MAN on an Atari console in the 1980s. Take, for instance, an AR game today that scans your room and your face, there are interactions with a privacy law that come into play. If you play a mobile game where you capture virtual creatures in the real world, you may find yourself interacting with property law issues such as trespass. As VR worlds grow in complexity, we have to also consider the ability for crimes to be committed in those worlds, and so criminal law can come into play.

These are all considerations that will have to be taken into account by those who draft the law. As it stands, the law trails technology by a number of years given that laws have to be drafted and enacted. Those doing the drafting have to have a solid understanding of new technologies in order for the laws to have a proper effect and avoid having unintended consequences. It is also a costly and time-consuming process for many companies to adapt their systems and ways of working to new legal frameworks, so care must be taken in drafting.

Image Credit: Headshot provided by Kris Kotwiki, banner designed by Caiti Galwey and Delinna Ding

Stock photos obtained from pexel.com

Student Spotlight: MODA9 with Matt Li

Matt Li is a second year JD student at Melbourne Law School. Matthew and Leah from FAME sat down with him, to discuss his student led start-up and online fashion publication MODA9 and his passion for creative expression and entrepreneurship.

Tell us about yourself and your project MODA9!

I’m from Hong Kong originally, I came to Australia in year nine and just recently received my citizenship! I’m a second year JD student who has a love for fashion. I am not sure what kind of law I am interested in, somewhere in media and start-up law would be fun! I always liked the idea of helping businesses build from the ground up.

MODA9 is an online fashion publication that talks on a wide range of topics. They change depending on what our team finds gripping that week. We also run events and support under-represented brands in the industry, through our ‘small business initiative’. It doesn’t really feel like a company at this stage. We don’t make a profit, we work with our peers, so I am very reluctant to call it anything bigger than a start-up.

What inspired you to start MODA9 while in law school and how has law school shaped MODA9?

I can’t claim all the credit, I do have an amazing team working with me! The reason MODA9 started was because I was doing media during my undergraduate degree, and I had a lot of friends who did other more “high-achieving” degrees who would joke about my lack of future job prospects. This pissed me off, so when I got into law school I didn’t want to let my media degree go to waste. I was going to find my own way to prove that my degree has value! Starting MODA9 in law school was mostly incidental. I was talking to some friends from Arts and Economics who were also interested in fashion so we decided to put our words into action, chipped in for a Squarespace account and have grown ever since.

In terms of how law school has shaped Moda9, because the content we learn in law school can be monotonous. There are many people wanting to step outside of the law school bubble and get into something creative. I have two amazing graphic designers who help edit our videos, create our social media, and they are both doing full time law school work! The law school environment has also inspired me to create more content that would gear towards fashion with law such as IP law or startup law.

Tell us about the logistics of setting up a fashion company and producing the enormous amount of content? How do you put out an article every two days?

First off, I am very fortunate to have such amazing friends/business partners in law school; Tommy Lee and Natalie Wang. They have been instrumental – Natalie is a social media influencer, so she helped me reach out to a lot of people. Even though MODA9 started with just a few friends who occasionally wrote an article, logistically we realised it wasn’t going to be sustainable.

I now try to attract people who produce content especially on social media. I would also offer people a portfolio to write for, to give them resume worthy experience. I recently had one writer leave us because she actually got an internship at a magazine! It’s bittersweet, but is a good example of the quality of people we have on board.

Fellow Melbourne Law School Student and Marketing Director Natalie Wang

I’m always looking for new writers as well! I have always liked people to contribute their point of view, there are only so many stories I can tell from my perspective.

How do you balance this business and the busy schedule of law school?
Definitely don’t feel bad about leaving your business alone, even for long periods of time. I see the fashion side of my work to be more of a creative outlet. If I’ve been reading about Hart’s Concept of Law, I’ll then write about James Charles and Jeffree Star, as a mental break and a way of doing something for myself.

Why is fashion important to you?
For me, fashion is about self-expression. The most important part of that expression is about wearing a story. When I wear a look or help someone pick-out an outfit I want them to inspire themselves. Fashion is a great way of self reflection. In 2020 I see fashion as a way of people being honest with their expression. Oh, and if your piece is a thrift that’s a silver lining.

Who is your biggest fashion inspiration?
I wouldn’t say I have a single, particular person; I prefer to be inspired by genres. I have forever had a soft spot for the ‘70s new wave french film. The revolutionary staples from that era are constantly repeating as minimal layers with a chic attitude. On attitude, I also love what came out of the ‘80s music videos. I adore the outrageous campy spirit of that era.

What is MODA9 doing to grow in the short term?

MODA9 became an affiliated student society, so we are excited to see what traction we can gain from that. As well as reaching out to broader student groups, we have been incredibly fortunate to be a part of a virtual campus project which provides affiliated student groups with faculty staff to promote their groups.

We have also just started a small business initiative to put a spotlight on up and coming businesses. We are looking to create a platform for people who are not necessarily represented in mainstream fashion media.

MODA9 Instagram @themoda9

What is your dream for the future of MODA9?

The dream of MODA9 is to grow the opportunities for others to express themselves. We are always looking for new people to contribute in any capacity; whether that is writing a piece, photographing or being inspired with a new form of publication. Definitely get in touch!

The (C)opyright Chronicles

with Michelle Hambur from Heide Museum of Modern Art

The Copyright Chronicles is a series of interviews with creatives from different backgrounds, focusing on their practical experience of copyright law. For our first instalment, Reetika and Ashley from FAME, were lucky to chat to Michelle Hambur from Heide Museum of Modern Art. Michelle is a Senior Visitor Services Officer and for the past year, she has been working on copyright for Heide’s catalogues. Michelle holds a Bachelor of Arts (Honours) in Art History and Masters of Arts and Cultural Management from the University of Melbourne.

How does copyright operate in practice at Heide?

Heide needs to consider copyright in respect of every element of our operations, including, but not limited to, merchandising, social media, publications, printed media and program content.

I have primarily been involved in seeking copyright for images that are to be used in Heide publications, including catalogues. In these cases, I will be provided with a list of images that are intended to be used by the Curator of an exhibition or Designer of a publication. My role is to ascertain the copyright position regarding each of these images and, if required, obtain the necessary copyright permissions. As part of the information provided to me, the Curator or Designer, in consultation with our in-house Graphic Designer, will advise me as to whether or not we will require a high-resolution image of the work in question as this would usually involve an extra cost. In instances in which a high-resolution image is not available, we may be able to organise a professional photographer to take one.

I will then create a master document to keep track of all images. The next step is to review each image and assess who is the copyright holder, and then seek the necessary consents either through a direct contact with the copyright holder or their agent or through the Copyright Agency.  Usually, I receive information on these images some time before the publication is due to go to print so there is ample time to seek consent. Sometimes, however, there can be last minute changes which mean that the necessary copyright consent must be obtained urgently.

Museums, such as Heide, often have working relationships with similar institutions throughout Australia. Usually, there is a high degree of co-operation in dealing with these requests, with some institutions offering us an in-kind service and waiving their usual fees.

Heide Museum of Modern Art, John Gollings: Spirit of Place

What are common copyright issues you face in the museum space?

These days many images are available on the internet and individuals occasionally assume that such images do not need to be verified in terms of copyright. This can present some challenges when I am occasionally provided with images that have been taken off of the internet without any information as to where they were obtained. The process for ascertaining where these images have come from and who holds the copyright for them can be time consuming, involving some detective work.

Another issue we have faced is the financial costs of copyright and image requests. As I have noted, some institutions waive fees or provide consent or high-resolution images at reduced cost, but this is not always the case. As a not-for-profit institution, we are sometimes unable to use certain images if the costs to reproduce them are too high.

Are certain types of artworks trickier to deal with than others?

Historical images or artworks that are out of copyright are of course the easiest for a museum. Video or collage works that have incorporated several elements or sources can be more complicated. However, the issue of copyright is dependent on the specific work in question and I would not say that any medium is, in and of itself, harder to deal with than another.

Are there any ways you think copyright law can be improved to suit your practical experience?

As Australian copyright law is based in statute, it takes time for the full meaning of new provisions to be interpreted by the Courts so that there is a clearer understanding of how these provisions work. For example, section 200AB was introduced into the Copyright Act some years ago. It was intended to provide greater flexibility to educational institutions, libraries, archives, galleries and museums where the use is not covered by other specific exceptions in the Copyright Act. However, the provisions are complex and have not yet been tested by the courts. This has led to some uncertainty about how they operate. It is assumed that over time they will be tested and this will provide greater clarity but, for the moment, there is a reluctance to rely on them due to this uncertainty and lack of precedent.

Heide Museum of Modern Art, Mirka Mora: Pas De Deux – Drawings and Dolls

How accessible do you think the copyright regime is?

Most medium to large sized museums have staff members with expertise in the area of copyright. These staff members have been trained to understand Australian copyright law through both tertiary study and practical experience. For these trained personnel, copyright is generally understood and accessible, therefore consultation with lawyers is very rarely necessary unless it is a particularly complicated or unusual situation.

However, copyright law is arguably less accessible for artists who often do not fully understand their rights. Though some tertiary fine arts degrees will touch on such rights, not all practical artists have undertaken such degrees. Additionally, artists do not necessarily know where to look for easy to understand explanations that are not costly. I believe that museums have a moral obligation to assist artists in understanding their rights as much as possible and Heide always strives to provide such information to the artists we exhibit.

Do you think copyright law places a significant burden on museums?

I believe the checks and balances provided by copyright law are a necessary burden on museums. Though we do have to invest a lot of time and resources to ensure that we have followed the law correctly, we understand the need for these processes to ensure that artists are correctly compensated for their work. The proceeds from copyright can form a significant part of an artists’ general income and the work that museums are required to do to properly comply with copyright can assist artists in sustaining their practices.  However, the financial burden that is placed on museums to undertake this necessary work, and the expertise it requires, should be recognised when funding and grants are considered.

What differences have you found between upholding moral rights in comparison to copyright ownership?

Moral rights is a less rigid area of copyright practice however, for museums, they are of equal importance. There is a clear path to establishing issues of consent when dealing with copyright owners, whereas a greater degree of judgement is required to determine if moral rights are likely to be breached.  While a failure to attribute is fairly clear, the other requirements of moral rights necessitate a greater case by case judgement call by museums and, therefore, are less certain. This is exacerbated by the issues noted above in relation to artists not fully understanding copyright law, a problem which also exists in regard to moral rights.

Museums such as Heide are required to think about both moral rights and copyright concerns on a daily basis, including in respect of social media, merchandising and educational resources. Images are such an intrinsic part of the daily workings of a museum that both areas need to be considered and treated with the same level of importance.

Heide Museum of Modern Art, Temptation to Co-Exist: Janet Burchill and Jennifer McCamley

Do you have any thoughts about potential copyright issues arising through galleries increasing the content available online in response to the COVID-19 era?

While there is clearly more online activity in the arts and museums space in general, the copyright issues that have arisen are much the same as those that have been encountered over recent years. As museums have expanded their public programs and education programs in recent years and have presented more creative activities, copyright issues have continually arisen.  Most of the issues that have come up in the COVID-19 era are really just an extension of these.  There is clearly a greater use of social media at this time but the majority of the issues we are encountering are not unfamiliar. 

There are, however, a few specific issues that have arisen in regards to social media initiatives during this time. For example, programs in which members of the public are encouraged to recreate their favourite artworks and share them on social media. There has been some discussion as to whether this could breach copyright, with some arguing that these images could come within the fair dealing exception for parody under the Copyright Act. In reality, it is probably unlikely that anyone will pursue these individual cases on private social media accounts legally, but it has provoked some interesting debate.

All photos taken, supplied and used with permission by Reetika Khanna

The Brief

Welcome to FAME’s podcast series ‘The Brief’, a collection of interviews with industry professionals to explore what it’s like to work as a lawyer or artist in the creative industries.

Episode 1 with Entertainment Lawyer Shaun Miller

In our first episode, FAME chatted with award winning entertainment lawyer, Shaun Miller. Consulting on more than 200 films, documentaries and television series, our insights into a day in the life of Shaun shows just how interesting a legal career in the entertainment industry can be.

Check out the audio and full transcript HERE:

Episode 2 with Film, TV and Media lawyer Caroline Verge

In our second episode we chat with the wonderful Caroline Verge of Verge Whiteford & Co. Named one of the most influential people in Australian TV (SMH 28 September 2015), Caroline has extensive experience in film, multimedia and television law, and has worked on many Australian film and TV productions, including Romulus My Father, Art & Soul, RAMPAGE!, and online projects such as Aunty Donna and The Australiana Hostel.

Check out the audio and full transcript HERE

Episode 3 with Music, Film & TV and Digital Media Lawyer Jules Munro

In this episode we chat with Jules Munro of Simpson Solicitors. Named as a recommended intellectual property lawyer in the Legal 500, Jules has over a decade of experience advising clients in the film & TV, music and information technology industries. Jules’ recent credits as a production lawyer include the feature films Beneath Hill 60 and Short Beach, as well as the feature documentary Decadence: the Decline of the Western World and the Fox TV factual series Coast Australia (Series 1 & 2)
Check out the audio and full transcript HERE