Entertainment projects usually require a team to put together a deal; agents, managers, you (the attorneys) and sometimes producers, all work together to negotiate the deal or project details. Attorneys represent individual artists and writers as well as studios and networks. In film and television transactions, the attorneys represent individual artists and writers and work to ensure intellectual property rights are protected. Usually, you will receive the deal points once the agents / managers / producers have already drafted something. Your job will be to go through and make sure all relevant property rights are protected. The transactions will differ between film and television projects.
Film transactions require a package and development agreement detailing the rights holder(s) and an option agreement. There are 5 components to an Option Contract: (1) option term / fee – generally, 18 months and $1500; (2) purchase price – money required to purchase the script; (3) backend considerations – 5% in customary and negotiable based on precedent and what was received in the past; (4) writer render rights – is the script a work made for hire or spec script?; (5) additional writer(s) to be brought in on the project.
Actor Attachment Agreements are used to attach an actor to a film in order to get the film produced. The attachment agreement is subject to the actor’s availability, and to figure out payment, the agreement is considered as an offer to negotiate unless the producer specifically provides a play to pay agreement.
Director Attachment Agreements are more specific and the composition of which is based on a certain budget and director availability. Usually, a director will include language stating “I will be available for my next available spot, if production can wait.”
Producer Attachment Agreements are based on a time frame and may be subject to performance(s) and/or conditions for attachment. For example, a producer agreement may state “I am available for this time frame but, only if you attach X, Y and/or Z.”
Television transactions present many issues that commonly occur within the entertainment industry. A client will come in with a great idea for a tv show, and usually, they are pitching this great, new idea for a reality tv show. First and foremost, you need a network to air the show in order to get it on television. Without a network to air the show, there is very little you can do. Other big issues include whether the show going to be scripted or unscripted, whether the show is too similar to something that already exists and what kind of budget are you looking at, is your client a writer or producer. From a legal perspective, who walks away with ownership rights in the situation that your client writes the pilot and the producer has proceeds in actually making the pilot? And is there a conflict of interest in representing a writer and a producer? These are all important issues that need to be addressed in negotiations.
In entertainment negotiations, everyone should win! The goal is to figure out who gets what and under what circumstances. You should do a lot of research and understand what has occurred in similar transactions. A pie graph is always useful to determine where the highest percentage of rights will translate to be the most beneficial for your client, whether they be the writer or the producer or even the talent. In drafting documents, the producer will usually provide a draft to you, the attorney, for review and usually, a lot of editing and corrections.
Intellectual Property is always a concern in television and film transactions. Whether it be copyright or trademark, intellectual property rights are going to be a major consideration in negotiations. You must advise your client to register all material with the USPTO and not just the WGA (Writer’s Guild of America). Without registering, it is very difficult to enforce claims of infringement.
For a copyright application, you must be able to identify things about the property as to designate it as copyrightable intellectual property. Additionally, you must assign an owner of the intellectual property; this is especially important for authors and writers of screen plays. There must be a written assignment of the intellectual property in order to prove ownership and enforce against infringement. If the IP is designated as a work made for hire, the production company will own the rights to the property. However, if it is designated a spec script, the writer or author will own the rights to the property. This is because as a work made for hire, the production company hires the author to create the work and is controlled while doing so whereas with a spec script, the author is not paid and does the writing on their own time. A document recording sheet is usually used in these cases so the parties can register any assignments of intellectual property and therefore, legally claim proof of ownership. This provides security to the owner of the copyright similar to a copyright mortgage.
In practice, it is always a good idea to create an interview sheet requesting necessary information needed to register copyrights. You can use copyright.gov to determine the information required to register for a copyright, and then keep this sheet on file and update with subsequent projects. If you have these sheets completed for each of your entertainment clients, you will avoid unnecessary phone calls and emails back and forth requesting this information anytime you have to register or search for a copyright.
Trademark registration in the entertainment industry is relevant regarding the titles of works. A production company or network is going to be hesitant to market a film or television show if someone in the marketplace already has trademark rights on that title. The more exposure a project receives, the more protected the trademark is going to be. Common trademark issues arise from a failure to clarify who owns the trademark rights in a film or television series. It is always a good idea to assign all intellectual property rights, in writing, to avoid future ownership claims.
How To Earn CLE Credit on this Topic
For additional information on this topic, Attorney Credits offers a course titled “Entertainment Law 101.”
The course is available for CLE credit in the following states: Alaska (AK) | Arizona (AZ) | California (CA) | Connecticut (CT) | District of Columbia (DC) | Georgia (GA) | Illinois (IL) | Maryland (MD) | Massachusetts (MA) | Michigan (MI) | Missouri (MO) | New Jersey (NJ) | New York (NY) | Pennsylvania (PA) | South Dakota (SD) | Texas (TX) | Washington (WA)