Thoughts on Contracting from a Lawyer Turned Filmmaker
Legal Issues Every Web Series Creator Should Consider
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“Oh good, you’re a lawyer, can you look at this contract for me?” you ask, when I tell you that aside from being an independent filmmaker, I’m also a practicing attorney. While I do have enough experience to sort my way through a densely worded agreement, I need to tell you that I am not an entertainment attorney. The practice of law is often highly specialized, and for some of us, the last time we even thought about licensing, intellectual property, or employment law was back in law school, which for me was exactly none of your business years ago.
But, while I am not qualified to give you the latest breaking precedent on iron clad employment contracts, licensing agreements, or music royalties, what I can give you is a little confidence when you are handed a big intimidating agreement from a distributor or festival, and hopefully some insight into how a lawyer “thinks” when figuring out how to write contracts of his or her own.
If it’s not in writing you have nothing. Get everything you care about in writing. Get everything you care about IN WRITING. A contract can be created by the simplest email exchange — forms are just forms. And even an email saying “hey, this is quick summary of what we agreed to on the phone, if you have any corrections, please let me know by the end of the week via email” can be useful later.
But when you can, make sure that every agreement you put in writing contains an offer by one person to do something, the acceptance of the other, and something at stake — what we call, “consideration.” Money is typically what we’re talking about, but exchange of services can work too. Get those elements in writing around everything you think could be a problem later — or you don’t think, but might be, and you just don’t want to deal with it. “In exchange for your offer to volunteer services to the project, which I hereby accept, I have agreed to provide you high quality copies of your footage for your personal use.” Could this be challenged for fairness or other lawyer-y stuff later? Sure. But at least you have an offer, an acceptance, and some sort of value (the reel material). Having that in writing might just stop an argument from starting.
What do you want? Most of the time, a legal background in filmmaking comes in handy when it’s time to actually craft or review an actual, fully drafted, multi-part, and confusing contract. Regardless of practice area, with a little bit of research, any lawyer worth his or her salt can draft an agreement that should do a fairly good job at stating the guidelines of whatever relationship is being documented — with an actor, a crew member, a distributor, a festival, etc. Will it have the most up to date language reflective of the most recent case law decisions that impact your particular agreement? No. If you have the money to get someone who can do that, great.
I’m just going to assume you don’t, so here’s how I look at them:
- A contract is simply an agreement between parties to set the rules over whatever deal they are setting. So, make sure that when reading the language of the contract, the things you want, you get. I mean, that sounds simple, right? It can get a bit abstract. For instance, a distributor wants your film. How long do they get it for? Starting from what date? Do you want the ability to terminate? How? What do you have to do? Do you want to keep all ownership rights? Do you want to make sure you can contract with another distributor for another market or different medium? Questions are your friends here. Make sure your agreements contain the answers, clearly.
- You have the power to amend. Again, this is an agreement between two people with assumed equal bargaining power (even if you feel like you don’t have it because of their suits and haircuts). You want something, they want something. If your counterparty has a huge team of lawyers and you get a big fancy form with dense language, well you just go right through the thing with a red pen and edit it to reflect the agreement YOU want. Don’t be married to a form. Don’t be scared by a form. Don’t back off immediately when they say “this is our form.” You say “well that’s not the agreement I had in mind.” Push, lawyer or not. You can always tuck your tail behind your legs and take the original deal, if they are still offering it. It’s cool. But don’t be afraid to “control the pen.”
- With the power to amend comes the power of a rider. A “rider” is an insert — meaning something you put in that the author didn’t originally draft. If the agreement they gave you doesn’t cover something you need covered…add it. And make sure you haven’t signed anything until everyone is happy with the final result. This is 50% your agreement. Two no-nos: Don’t AGREE to what they gave you and then offer ADDITIONAL terms. You want your acceptance to be contingent on your edits. Also, don’t rely on “but he said this in an email” or “we talked about this on the phone” or “oh but she said it was cool.” No. Get it in the document. Every properly drawn contract will have a little paragraph typically called “entire agreement” that says, basically, if it ain’t in the contract, we didn’t agree to it.
- Use models. There are very few contracts that start as a blank page. Even the fancy form you got from your counterparty’s lawyers is a hodgepodge of 100 different agreements before it, borrowing the stuff applicable from other agreements. So, say you want an image release form for an actor to sign. Find one on the internet. No, find five, take the pieces you like from each, and make a Frankenstein agreement that works for you. We’re not plagiarizing term papers here.
- Be as specific with your language as possible, to the point where you just want to end it all. Why are professionally drafted agreements so long and densely worded? Because god forbid a judge has to hear a dispute between counterparties some day, the first thing the judge is going to do is look at the language to see if the language spells out what to do. If it doesn’t, and the contract is deemed ambiguous, then you have to have a whole evidentiary process about “well what did we mean when we used the word ‘the’” and that is expensive and time consuming and just soul sucking. So if something is really important to you, don’t be afraid to use painstaking language to SPELL IT OUT. We ain’t writing prose here. In particular, caveats are your friends: “provided however, that for further clarification, under no circumstance ___”; “provided that the parties have agreed to waive this section with respect to ____”; “as an illustration of the effect of this section, ___”.
- Capital letters have meaning. Why does an agreement keep saying “the Party” instead of “the party”? Because in this case Party is a defined term. It’s defined above, so we don’t have to keep saying “Lord Voldemort at 1 Snakeface Hollow, London” over and over again. (Nerds, do not come at me, I didn’t have time to look up where he was living.) Why is this important? Because very important terms can be defined. Your “Rights”, your “Interests”, the “Licensed Product”, your or their “Services.” So all defined terms need extra extra special attention to be as narrow or as broad as you need them to be.
I really could go on forever. But, generally, when faced with reading or drafting a big ugly legal document without the aid of an appropriately specialized lawyer, think:
- Does it spell out the things important to me so clearly anyone can understand what we mean?
- Is it asking me to do anything I don’t want to do?
- Is it defining me, my project, my or their services in the way that I understand those words to mean?
Contracts are really just your insurance for later when someone “forgets” what the deal was. So at the end of the day, make sure it can clearly jog the memory when needed most.
Jack is a practicing corporate bankruptcy attorney in New York State as well as an actor, writer, producer, director, singer, dancer, nerd and fan of a well-structured email chain. Jack is currently producing and starring in the second season of his award-winning LGBT web series “History.”
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