Category Archives: Television

The unreasonable expansion of the Right of First Refusal Clause in entertainment contracts.

The unreasonable expansion of the Right of First Refusal Clause in entertainment contracts.

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The unreasonable expansion of the Right of First Refusal Clause in entertainment contracts.Get Your Head around the movie biz

After practicing entertainment law for nearly 25 years, I've noticed a disconcerting trend in deals with major studios and networks. That trend is toward expanding the scope of a Right of First Refusal and First Negotiation clause(s) in such a way as to unreasonably encumber things, even after the studio or network has “passed” on a project.

What is a Right of First Refusal?

A Right of first refusal (ROFR or RFR) is a contractual right that gives its holder the option to enter a business transaction with the owner of something, according to specified terms, before the owner is entitled to enter into that transaction with a third party.

What is Right of First Negotiation?

Sometimes called a “Right of First Offer”,  a Right of First Negotiation  means that the  owner must undergo exclusive good faith negotiations with the network or studio before negotiating with other parties.

So, for example, when selling rights for a screen adaptation of a novel, the author of the book might wish to reserve rights for audiobooks, an author-written sequel, or a stage adaptation. Often, studios will grant such reservations of rights, but insist on a Right of First Refusal or First Negotiation.

Under such a clause, before selling or licensing a reserved right a third party, the author would be required to first offer the right to the studio. Then, if the studio doesn't accept the proposed terms, the author is free to sell to (or negotiate with, as the case may be) others.

But, over the past few decades, studios and networks have apparently decided that Rights of First Negotiation and First Refusal aren't sufficient to secure their stranglehold on content. As a result, they have increasingly insisted on also including similar, but more onerous Right of Last Refusal clauses.

What is a Right of Last Refusal?

A right of last refusal gives one party to a contract the right to accept any bona fide offer made by a third party for some right.

So, in the aforementioned example, the book author might decide she'd like to see a stage play of her novel. Because of the Right of First Negotiation, she is obliged first to approach the film studio, and to negotiate for a period of time. Then, if that time, expires and the parties haven't reached any agreement, she's free to offer the stage rights to others. But  with the Last Refusal in place, after negotiating a stage rights deal with a Broadway producer, our book author must first go back to the film studio, and allow them to match the terms.

How a Right of Last Refusal unreasonably encumbers a property.

Such Rights of Last Refusal are an unreasonable encumbrance on creators' property rights. They effectively, deny the holder of reserved rights any meaningful opportunity to exercise those rights,  and that renders the reservation of rights essentially void. As you might imagine, it can be difficult for a rights holder to interest any third party in a property, if that party knows that, after lengthy negotiations, the best deal to be struck can simply be matched by the film studio. As a consequence, the studio (or network) effectively holds a free, perpetual option to acquire the reserved rights. In my view, this is patently unfair, and should be avoided.

Of course, if the financial terms justify such an encumbrance, then so be it, but parties should understand the consequences of the provisions to which they agree.

When negotiating contracts with reservations of rights, it is of utmost importance that rights holders resist the use of clauses granting rights of last refusal.  Unfortunately, the only way to accomplish may involve saying “no” to an otherwise attractive deal.

Production Services Agreements

A commonly used, but often misunderstood type of contract used throughout the entertainment industry is the Production Services Agreement. This short article will attempt to demystify and explain the use of such agreements, but shouldn't be treated as a substitute for real legal advice from a lawyer you've hired to help you determine the best overall deal structure for your project.

What is a Production Services Agreement?

A Production Services Agreement is a contract between a financier, distributor (sometimes), or a lead-producer who wishes to hire a production company to handle all of the boots-on-the-ground aspects of producing a film, television program, commercial or other media production (we'll call this the “Project”). The production company brings to bear all of its expertise, knowledge, personnel, and other resources to produce and deliver the Project according to the financier's specifications. Continue Reading

Nudity Riders – What they are, why you need them.

Nudity Riders – What they are, why you need them.
Unless you' re producing strictly kid-oriented or daytime TV programming, it's likely that at some point, there will be a scene in one of your projects involving nudity or the suggestion that the characters are having or have just engaged in a sexual encounter.

Shooting such scenes requires sensitivity, discretion and above all, a written Nudity Rider to accompany the contracts of any actors who appear fully- or partially nude.

What is a Nudity Rider?

Nudity Riders are primarily the product of the collective bargaining agreements between actors unions, such as SAG/AFTRA in the U.S., and ACTRA (Canada). These agreements provide that when scenes in a film or TV project require nudity or simulated sex, the production environment is restricted to a small number of persons present, each of whom must be directly related to the scene and material in question. Still photography is not permitted, and clips from the scene may not be used in promotions, etc., without the actors'; consent. Body doubles can only be used with consent of the performer being doubled, unless that performer has previously agreed to perform the scene, and later opted out.

It should also be noted that restrictions apply not only to production of the scene itself, but also to the auditions for such scenes, if auditioners will be expected to disrobe there. (Which may occur only once per project.)

A separate document called a “Nudity Rider”; must accompany the performer's contract. The Nudity Rider must include specific descriptions of the exact nature of the nude, semi-nude or love scenes involved, along with detailed explanation of the nature of the attire involved (see-through clothing, for example), along with any other relevant information required to fully disclose the nature of the nudity required.

Riders typially contain very detailed narrative descriptions, and excerpts from the screenplay so there can be no dispute or misunderstanding about what's contemplated.

The Nudity Rider must be presented to the performer well in advance of the signing of the contract, so the actor will have sufficient opportunity to consider without pressure to sign.

But I have a contract with my actors. Why do I need an extra document?

Every contract is intended as a manifestation of the parties' mutual assent. That is to say, a contract is proof that the parties have had a “meeting of the minds.” So, it's important that the precise details of any unusual or sensitive performance requirements be carefully laid out. While it's technically possible to incorporate all of the scene details into the body of actors' contracts, doing so is not considered proper. The use of a separately signed rider document lends gravity to the situation, and reinforces the significance of things. Without this carefully drafted discussion of the sensitive scenes, the producer is vulnerable to claims that the actor didn't fully understand what would be expected of her (or him), and the actor is vulnerable to bullying, intimidation and an extraordinarily uncomfortable work environment.

The goal of a nudity rider is to address all of the possible issues that might arise from the incredibly sensitive nature of performing nude, semi-nude and simulated sex scenes. When agreeing to perform such scenes, actors take enormous risks, and are extraordinarily vulnerable. It's only proper that they're fully-informed before agreeing to do such work, and that they've had opportunity to discuss and negotiation for protections to ensure their comfort and safety on-set.

I'm shooting non-union. Do I still need a nudity rider?

Technically, and legally speaking, productions using non-union performers are not subject to the requirements and limitations discussed in this article. Nevertheless, I recommend that every project involving nude, semi-nude, or simulated sex scenes (or other extraordinary, dangerous, or sensitive performances) be documented as fully and thoughtfully as possible. Using Nudity Riders has become the accepted best practice for non-union production as well as for shoots governed by SAG/AFTRA, ACTRA and other performance unions.

Conclusion

If you're shooting material that includes nude, semi-nude or love-scenes, a carefully considered and well-drafted nudity rider describing the exact details of those scenes is a must. Your casting team and entertainment lawyer should confer early in the process to ensure that all union rules are observed, and that the contract and rider are prepared properly.

4 reasons why receiving Producer Credit may not be all it’s cracked up to be.

4 reasons why receiving Producer Credit may not be all it’s cracked up to be. It’s a common practice in the entertainment industry. Producers operating on shoestring budgets will, in an effort to secure the property and/or services of talented individuals, ofer them some kind of producer credit in lieu of the usual compensation those… Continue Reading

Why you need an entertainment attorney to help negotiate your television acting deals.

Why you need an entertainment attorney to help negotiate your television acting deals Not long ago, I was contacted by the manager for an actor who appears on a major network television program that’s just been picked up for its second season. This actor feels he’s undervalued on the show, and wants to renegotiate his… Continue Reading

Location managers protest LA City Council agenda item – Council to consider tougher film permit rules and deadlines.

The LA City Council is once again contemplating changes to the City’s location permit rules that stand to make much more difficult for Location Managers, especially those working on short timelines. The agenda for the March 31 Council meeting includes consideration for new rules would impose longer lead-times for permit requests to be submitted to… Continue Reading

Why every writing team should have a written collaboration agreement. (part 3 of 3)

This is the final installment of  a 3-part series on the importance of collaboration agreements for every writing or other creative team.  In Parts 1 and 2, I analyzed some of the important provisions found in properly negotiated and drafted collaboration agreements.  Here, I’ll continue that discussion, and explain the advantages of using entertainment lawyer… Continue Reading

Music Basics for Film and Video productions.

Music is an integral part of any filmmaker’s toolbox. Proper selection of music can help tell a story, set a mood, and build suspense. For most independent productions, however, music is either under-budgeted or not budgeted at all. Even when there IS a music budget, it’s often re-allocated to more pressing expenses during production. This… Continue Reading

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