TAMPA
BAY FILM
Is independent filmmaking illegal?
By
C. A. Passinault
Publisher
Tampa Bay Film
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The
following information, written on the morning of December 21, 2023, and
uploaded and deployed on the Tampa Bay Film web site on the morning of
December 27, 2023, is my opinion.
I do not guarantee this information, as it is about third parties beyond
my control. Take it as you will, and use it as a starting point in your
research, research that has to be done if you are serious about making
and selling independent films.
Don’t take my word for it. Look it up. You cannot take the risk
of ignoring this information.
It is also my opinion that this information, once it becomes known (and
it will become known, increasing the risk to filmmakers whom choose to
ignore it), will change everything about how independent films are made,
and if they are even made available to sell.
This is not advice, and should not be taken as advice. Use at your own
risk.
I did some research over the past few years, and I have determined that
many independent films made in Florida are illegal. This came about because
I was ramping up operations for the production of my own independent films,
and I am bound by these same rules and conditions that other independent
filmmakers are bound by.
How is this so? Read on.
Independent
Film Production
Many independent films are produced illegally because
they are, technically, according to the IRS, businesses with employees.
Most are not done that way. Most, in fact, don’t even have business
licences, nor do they use any kind of contracts, waivers, or releases,
including the absolutely critical Work For Hire Agreement.
Without a signed Work for Hire agreement, you can’t even prove copyright
ownership of the work, and that is just only one example of why legal
paperwork is important.
As a result, the cost of making independent films will increase by a factor
of ten. This is especially true if you try to make indie films like a
traditional movie. The more pretentious that your production is and the
more that you agree to, the more expensive that it will be to make independent
films, in many cases in ways that you cannot control or get ahead of.
Give a little, give a lot. You alone open the door to much higher costs
if you make concessions that give such costs leverage.
If you pay talent or crew, you had better to be prepared to pay a lot
more, as they will then be able to come back at you for back wages on
minimum wage and you can get hit with penalties by not having things such
as Workers’ Comp Coverage, or Worker’s Compensation Insurance,
which you have to have if you have four or more employees. Employees?
What about using independent contractors? Well, I looked, and, unfortunately,
the IRS doesn’t see it that way, and they won’t accept it.
Declaring it so in your legal contracts won’t change a thing, either.
The IRS has the power to determine what you are doing is defined as, and
it doesn’t look good for most independent filmmakers. The law doesn’t
seem to be on our side, and they don’t care what you are trying
to do.
They do not care, and if you ignore this, you are opening yourself up
to all sorts of problems’ you will get burned.
If the IRS determines that your cast and crew are employees, and it looks
like they will, You need to pay minimum wage, you need Workers’
Comp coverage, and your need to treat them as employees. You also have
to comply with labor laws. You had better have money above and beyond
what it takes to make an independent film; you are going to have to start
a business to do it.
Don’t pay minimum wage? Your cast and crew can come after you for
back wages as well as penalties, too. Can you trust them not to do that?
It only takes one person to come after you and to burn you, and most independent
filmmakers can’t afford that. They can end your filmmaking career.
Oh, and that business had better be an LLC, or you open yourself up to
personal liability. You may want to have some cash to put a good attorney
on retainer, as well.
It’s going to be too expensive for many filmmakers to make films.
Even a short film will cost thousands, and you will have to pay it.
For charity? We all know what that it really about. You either better
be able to prove that you are donating to a charity that has a 501(C)3,
or had better set up a business with one.
Indie
Films With Obscene Content
This one won’t affect as many independent filmmakers,
but it will some.
Some filmmakers can’t write or tell a good story, and could care
less about characters or character development, so they compensate by
making films with controversial or shocking content, such as excessive
violence, gore, Nud!ty, and other things that they think will make what
they call independent films “sell”.
Free speech and freedom of expression will not protect the independent
filmmaker who pushes it too far and creates content which the community
could consider to be obscene.
These idiots make all independent filmmakers look bad, and make it more
difficult for legitimate indie filmmakers to make films without being
hassled or harrassed.
There is a case about a “filmmaker” in South Florida whom
made videos with extreme content. He was arrested, prosecuted, and spent
time in prison. The case, ironically, was tried in Tampa.
Feel free to look it up.
The risk of criminal charges and jail time is real. It could also be argued
that every single person whom helps you make that film can also be charged
and prosecuted.
Not so cool, now, is it?
It doesn’t matter what you think or how you feel. It doesn’t
matter how your friends or your small group of fans that buy your garbage
feel.
What would a jury of average people say that your film is if they saw
it? It matters, because their judgement will be the one that sends you
and your friends to prison.
Be cause I care about local independent film and its reputation, I’ll
tell you what I would do if I saw an independent film with no redeeming
qualities and obscene content. I’d let law enforcement know about
it, as well as the District Attorney and the Attorney Ggeneral of Florida.
If that didn’t yield results, I would contact the media, such as
the News Assignment Desk of the local Television Stations. If that didn’t
work, I’d get my friends and others involved, and we would all start
making calls.
That would open an investigation, and the filmmaker and their buddies
would be held accountable.
If I were these filmmakers, I would stop selling my films.
You never know who will see it; it’s too much of a risk.
UPDATED 12/27/23/0404/ - 10/23/25/2112/
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