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10 • 2020

Do you need to incorporate to start a new film project?

Starting a new film project can be exciting, but filmmakers should keep in mind that it is not necessary to incorporate at the beginning stages of your project, or at all.   “Choice of entity” refers to whether a client should form a corporation, LLC, or limited partnership.  For lawyers and film makers alike, it’s usually a foregone conclusion that starting a business entails forming one of these three kinds of business entities.  Liability protection, pass through taxation, gross receipts fee, flexibility, and management structure are factors that are compared and analyzed.

But hold the presses. What about not forming an entity at all?  I see far too many boxes of unnecessary paperwork, unopened envelopes from the Franchise Tax Board, and frustrated clients who have formed an entity online and later regret that they formed an entity at all.

Here are some basic considerations for independent filmmakers who are considering incorporating for a new project:

Are you aware that you can start a project without forming a corporation or LLC?

Yes, in the United States it’s extraordinarily easy to start a business, and there is absolutely no requirement that you form a corporation or LLC as the first step.  A lot of businesses, including my own, started as a sole proprietorship.

Do you have a good reason to form a corporation or LLC?

The key reason to incorporate or form a LLC is liability protection.  If you have no assets to risk, there’s very little to protect, and virtually no reason to incorporate.  In fact, a corporation won’t even provide liability protection unless it is adequately capitalized.   Good reasons to incorporate are: (a) you are creating a business structure with investors or partners, and (b) you have assets to protect from the liability arising from the business.  For filmmakers, it may be a good idea to form an entity for a production if there could be potential copyright infringement litigation or liability associated with the production.

Do you have the resources to maintain a corporation or LLC?

You cannot have a corporation or LLC without filing annual tax returns and paying state franchise tax (a minimum of $800/year in California).  For most of us, that means you should not form a corporation unless you can afford to pay a CPA to prepare the annual tax return and you have the resources to manage a little extra bookkeeping to keep your corporate expenses separate from your personal expenses.

Taxes benefits are icing not the cake.

While it’s possible that there might be some benefit to incorporating from a tax standpoint, tax benefits are the icing on the cake, not the cake.