Written By: Raymond D. McElfish, Esq.
McElfish Law Firm
West Hollywood, CA
For a restaurant owner, the opportunity to have their establishment featured in a major motion picture or on a well-known television show is one that should be seriously considered. Even a short appearance on an obscure cable series can provide marketing opportunities that go far beyond the original broadcast.
Scripted television shows such as Entourage and Showtime’s Californication, along with many network reality shows, regularly shoot scenes in “real” restaurants & clubs, giving the shows a more current and realistic feel, while allowing the restaurant to benefit from exposure on a national scale.
These media appearances can be recycled to keep the buzz going long after the show is over: as a blurb in celebrity tabloids, a destination on a travel or fan site, a photo on the restaurant’s website or a post on Facebook/Twitter.
Most restaurants receive a fee for allowing on-site filming but occasionally forgo monetary compensation if the expected publicity is expected to be extensive. If the television show in question has high ratings, the restaurant owner might negotiate for a mention in the actual dialog, a listing in the credits and/or on the show’s website or even a long, lingering shot of the restaurant sign. In many situations, the restaurant will feed the cast and crew throughout the shoot.
But there are risks involved. As many restaurant and club owners will attest, having a film crew and their equipment on the premises poses a risk of property damage that’s often difficult or time consuming to rectify. And even when the damage is acknowledged, the production company often doesn’t carry enough insurance, or have the right type of insurance, to restore the premises to its original state. Or they’re unable to pay the large deductibles.
So how can a restaurant owner reap the benefits of exposure but still protect his or her business, employees and patrons?
First, make sure the production company is legitimate, and verify that the person claiming to represent the company actually does. Ask to see their “reel”, either on a website or DVD (a reel is a short sampling of recent film projects), their business cards and any other promotional materials available. Also, review their producing history on IMDB.com (Internet Movie Data Base).
Always verify that the production company has three types of insurance: general liability, property damage and workers compensation. Often property owners will unwisely allow filming based only on the existence of general liability insurance, believing it will cover any damage or injuries related to the shoot, but this isn’t true. Without separate property damage and workers comp policies, the restaurant owner could be liable for actor injuries or be forced to pay for property damage out of their own pocket.
The restaurant owner will be asked to sign a location agreement, provided by the production company. It will spell out when, what, where and who will be using the property, along with any specific prohibitions, compensation, credits, and insurance requirements. It’s always advisable to have an attorney review this document.
Always have a provision in the agreement for expendable and electric power usage. For example, if the cast and crew use up toiletries or electricity at the location, the restaurant owner should receive compensation. There are other types of expendable items, but these are the most common. Larger productions generally bring their own power generators and restroom facilities.
Ensure the production company will cover any deductibles of a property damage claim, will fully compensate the restaurant even if the insurance company declines the claim, and will take a cash deposit or credit card hold for the amount of the deductible, in case the production company is slow to react.
Here is the coverage provided by these three types of insurance:
General Liability Insurance: this protects the general public and restaurant patrons from the actions of the production company. For example, imagine a production crew is setting up before the actual shoot. Since the restaurant is open for business, there are patrons coming in and out. A patron accidentally trips on some cables that a crew member did not properly secure. Now there’s a possible claim and lawsuit on the part of the restaurant owner and the production company. Hopefully, the production company has proper General Liability coverage and the restaurant owner is listed as an Additional Insured on the production policy. (Note: A standard policy is usually $1M, but higher limits can be requested.)
Property Damage Insurance: this covers any damage or destruction of the shooting location and the property contents of the location while it’s in the care, custody or control of the production company.
Workers Compensation Insurance: workers compensation coverage provides medical, disability or death benefits to any cast or crew member who becomes injured in the course of their employment.
It’s common for independent filmmakers and low budget productions to forgo workers comp coverage, thinking the entire cast and crew qualify as “independent contractors” or have 1099 status. However, the law states that if an individual cannot provide proof of their own workers comp coverage, then the production entity has to provide it, regardless of employment status. Often, filmmakers will ask crew and cast members to sign “waivers” that waive his/her rights to this insurance. Inexperienced cast and crew will often sign these “waivers” thinking it’s the norm. In reality, the “waiver” document is unenforceable by law, because workers compensation isn’t “waive-able”.
Make copies of the insurance certificate(s) that list these policies and call the broker listed on them to verify the policies actually exist.
Anything that the restaurant owner wants prohibited should be spelled out in the location agreement mentioned earlier.
For example, be careful with allowing pyrotechnics or stunts; filmmakers have a tendency to take risks to get that perfect shot. Be wary of any film that takes place entirely in a kitchen as the needed pyrotechnics are likely to go beyond what is safe.
If, say, actors are portraying chefs, specify the ovens cannot actually be turned on. Different camera angles can be used to give the illusion that real cooking is taking place, while never actually showing a frying pan with real flames underneath. And CG/SFX [computer generated special effects] can always be used in post-production editing to insert any needed effects.
If most of the film will take place in a kitchen, carefully weigh the compensation against the risks and hassle involved. In situations like this, the production company—and the restaurant owner— might be better off simply building a fake kitchen.
And finally, always, always, take “before” and “after” pictures. In the event of a problem, these may turn out to be the most important “shots” of the entire film experience.
Raymond D. McElfish is the president of McElfish Law Firm in West Hollywood, CA. He is a member of the Primerus Retail/Hospitality/Entertainment Practice Group. For more information, visit www.mcelfishlaw.com or the International Society of Primerus Law Firms.