Performance Clauses In Entertainment Contracts

Producing and editing a masterwork of recorded music is obviously a specialized art form. But so is the entertainment lawyer’s act of drafting clauses, contracts, and contractual language generally. How might the art of the entertainment attorney’s legal drafting a clause or contract affect the musician, composer, songwriter, producer or other artist as a practical matter? Many artists think they will be “home free”, just as soon as they are furnished a draft proposed record contract to sign from the label’s entertainment attorney, and then toss the proposed contract over to their own entertainment lawyer for what they hope will be a rubber-stamp review on all clauses. They are wrong. And those of you who have ever received a label’s “first form” proposed contract are chuckling, right about now.

Just because a U.S. record label forwards an artist its “standard form” proposed contract, does not mean that one should sign the draft contract blindly, or ask one’s entertainment lawyer to rubber-stamp the proposed agreement before signing it blindly KissCartoon . A number of label forms still used today are quite hackneyed, and have been adopted as full text or individual clauses in whole or in part from contract form-books or the contract “boilerplate” of other or prior labels. From the entertainment attorney’s perspective, a number of label recording clauses and contracts actually read as if they were written in haste – just like Nigel Tufnel scrawled an 18-inch Stonehenge monument on a napkin in Rob Reiner’s “This Is Spinal Tap”. And if you are a musician, motion picture fan, or other entertainment lawyer, I bet you know what happened to Tap as a result of that scrawl.

It stands to reason that an artist and his or her entertainment lawyer should carefully review all draft clauses, contracts, and other forms forwarded to the artist for signature, prior to ever signing on to them. Through negotiation, through the entertainment attorney, the artist may be able to interpose more precise and even-handed language in the contract ultimately signed, where appropriate. Inequities and unfair clauses aren’t the only things that need to be removed by one’s entertainment lawyer from a first draft proposed contract. Ambiguities must also be removed, before the contract can be signed as one.

For the artist or the artist’s entertainment attorney to leave an ambiguity or inequitable clause in a signed contract, would be merely to leave a potential bad problem for a later day – particularly in the context of a signed recording contract which could tie up an artist’s exclusive services for many years. And remember, as an entertainment lawyer with any longitudinal data on this item will tell you, the artistic “life-span” of most artists is quite short – meaning that an artist could tie up his or her whole career with one bad contract, one bad signing, or even just one bad clause. Usually these bad contract signings occur before the artist seeks the advice and counsel of an entertainment attorney.

3. DEALING WITH THE GUILDS: Let’s assume that the film producer has decided, even without entertainment attorney guidance yet, that the production entity will need to be a signatory to collective bargaining agreements of unions such as Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This is a subject matter area that some film producers can handle themselves, particularly producers with experience. But if the film producer can afford it, the producer should consult with a film lawyer or entertainment lawyer prior to making even any initial contact with the guilds. The producer should certainly consult with an entertainment attorney or film lawyer prior to issuing any writings to the guilds, or signing any of their documents. Failure to plan out these guild issues with film or entertainment attorney counsel ahead of time, could lead to problems and expenses that sometimes make it cost-prohibitive to thereafter continue with the picture’s further production.

4. CONTRACTUAL AFFAIRS GENERALLY: A film production’s agreements should all be in writing, and not saved until the last minute, as any entertainment attorney will observe. It will be more expensive to bring film counsel in, late in the day – sort of like booking an airline flight a few days before the planned travel. A film producer should remember that a plaintiff suing for breach of a bungled contract might not only seek money for damages, but could also seek the equitable relief of an injunction (translation: “Judge, stop this production… stop this motion picture… stop this film… Cut!”).

A film producer does not want to suffer a back claim for talent compensation, or a disgruntled location-landlord, or state child labor authorities – threatening to enjoin or shut the motion picture production down for reasons that could have been easily avoided by careful planning, drafting, research, and communication with one’s film lawyer or entertainment lawyer. The movie production’s agreements should be drafted with care by the entertainment attorney, and should be customized to encompass the special characteristics of the production.

As an entertainment lawyer, I have seen non-lawyer film producers try to do their own legal drafting for their own pictures. As mentioned above, some few are lucky, and remain under the proverbial radar. But consider this: if the film producer sells or options the project, one of the first things that the film distributor or film buyer (or its own film and entertainment attorney counsel) will want to see, is the “chain of title” and development and production file, complete with all signed agreements. The production’s insurance carrier may also want to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents must be written so as to survive the audience.

Therefore, for a film producer to try to improvise law, is simply to put many problems off for another day, as well as create an air of non-attorney amateurism to the production file. It will be less expensive for the film producer to attack all of these issues earlier as opposed to later, through use of a film lawyer or entertainment attorney. And the likelihood is that any self-respecting film attorney and entertainment lawyer is going to have to re-draft substantial parts (if not all) of the producer’s self-drafted production file, once he or she sees what the non-lawyer film producer has done to it on his or her own – and that translates into unfortunate and wasted expense. I would no sooner want my chiropractor to draft and negotiate his own filmed motion picture contracts, than I would put myself on his table and try to crunch through my own adjustments. Furthermore, I wouldn’t do half of the chiropractic adjustment myself, and then call the chiropractor into the examining room to finish what I had started. (I use the chiropractic motif only to spare you the cliché of “performing surgery on oneself”).

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