Boilerplate contracts: 3 Legal Risks
Last week, I read an interesting post by Betty Wang, over at Findlaw's Free Enterprise blog, titled “Using Boilerplate Contracts? 3 Legal Risks.”, in which she outlines several good reasons why so-called “boilerplate” agreement templates can be dangerous. It's a short piece, and worth reading.
Application to the Entertainment Industry
In the context of the entertainment industry, those risks are amplified by the somewhat special, and often rather peculiar nature of our business.
One pitfall is the “inside baseball” occasioned by the use of terms of art, terminology which though seeming to have clear meaning to a layperson, actually have different and very specific meanings within the context of show business. (this is actually true of any mature business, in which the participants have developed a shorthand of common usage).
The times, they are ‘a changin'
Another pitfall arises from the changes in the laws and customs surrounding the creation of entertainment and media content. Those of us who draft contracts for clients in the entertainment industry have to keep up with developments in the law, as well as changes in the “custom and practice” within the trade. Approaches to contracting that were considered “standard” two years ago may have changed radically because of a recent lawsuit, or the development of a new technology.
One glaring example that's easy for a layperson to conceptualize is the continued presence, in film deals, of clauses calling for a director to receive a “VHS copy” of the finished film. I don't know about you, but I no longer even own a VHS player. Similarly, the complex grant of rights and reserved rights language has had to keep up with the times. Unfortunately, many contract forms found in books or on the web are simply outdated. The more technical language of these older forms, and more importantly what's left out can be very dangerous.
Contracts communicate your intentions
Finally, you ARE being judged on the quality of the contracts you present. When I'm consulted by a client who's been given a contract obviously pulled from the internet, it's easy for me to conclude that the party who presented it isn't willing to make a meaningful investment in the project. Why, then, would I counsel my client to do so?
So here's the bottom line: Contracts are the mortar that holds the metaphorical building blocks of our projects together. When properly crafted, they give the parties certainty and predictability about their relationships, how things are supposed to work, and what will happen if things don't. Without this mortar, the project may stand for a while, but as soon as something comes along to give things a shake, down everything will come.
Just as you'd hire a qualified contractor to build your home, shouldn't a lawyer to draw up the contracts that make the foundation of your business?
Hiring a lawyer to draft your entertainment industry contracts does cost more than doing it yourself, but it is an investment that will save you tremendous uncertainty, can help you avoid the headache of costly, time-consuming litigation, and preserve your rights to exploit the projects into which you pour your energy, passion and resources
Isn't it worth the investment?