BEFORE IT’S TOO LATE
Of all the things I have learned as a lawyer who negotiates and drafts contracts for production companies and artists is that 90% of the problems can avoided if you keep this simple expression in mind while you negotiate your agreement:
I need to take care of certain things…
BEFORE IT’S TOO LATE
Being concerned about it being too late would have helped this filmmaker who came to me after he had signed a distribution deal with a distributor. In the first month of being shown on pay per view, the movie grossed about $500,000. The distributor, however, decided he was not going to pay them the money they thought they were owed. Even worse, the contract the filmmaker signed did not give them the right to take back the film and find another means of distribution. So not only did the filmmaker not receive the money he was owed but also lost their film and the sequel rights. The problem was that by the time he came to me I could not really do anything for him.
It was the same with the writer who helped co-write a very popular and successful play, but only received a fraction of what she was owed. In this case, she didn’t even bother to have someone look at the contract. Or the production company that didn’t secure all the rights that they need to make a network deal because they didn’t think those particular rights were important. That mistake added three to four months of extra negotiations. And what makes these problems even worse is that they could have been avoided if they had been addressed … BEFORE IT’S TOO LATE.
That’s why BEFORE ITS TOO LATE should be every artist’s and entertainment executive’s mantra. Every time someone wants you to work on a show, write a script, shoot a movie you need to say am I protected if certain things go wrong and if you’re not well then you have to do something about that: take precautious, ask questions add language to your agreement… BEFORE ITS TOO LATE.
And you should start thinking this way as soon as you begin working with someone or someone wants to use your services and/or intellectual property. At these points in time, you need to think through what needs to be taken care of. Something may need immediate attention. Other issues can be dealt with later on. For instance, if you are going to collaborate with someone on a screenplay you should right from the beginning clarify what happens if the other party stops working on the screenplay; can you continue to work on it and try to get it made? If you don’t have a formal agreement you may not have that right because you might be improperly trying to use the other parties copyrighted material. At the beginning, however, you don’t have to worry about structuring the option/purchase agreement for a potential sale of the screenplay; that can wait until that time arises.
Sometimes the biggest problem is to know when “Before it’s too late” really does occur. That is why whenever you start a project and in particular when a project becomes a business venture it is important to consult people who have been through what you are going to embark on such as experienced writers, producers, directors and dare I say (and here is the blatant plug for my profession) maybe even a lawyer. You don’t have to talk to a lawyer that long. The important thing is too get a sense of the issues you will face and when you might expect to face them. Then you will be on alert to get more thorough advice when needed. That’s what it means to address problems BEFORE IT’S TOO LATE.
Sam Fortenbaugh is a New York based attorney specializing in entertainment and new media. He has represented writers, directors, actors, spokespeople comedians, as well as production companies. Mr. Fortenbaugh negotiates and drafts agreements for the acquisition of intellectual property rights, writers, directors and producers as well as for the forming of production companies. Sam can be reached by email at SFortenbaugh@Fortenbaughlaw.com. His website is www.FortenbaughLaw.com.