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Category Archives: Television

Locast (local TV antenna-to-streaming service) suspends ops after devastating court ruling.

Locast is a digital app that live streams over-the-air television stations without a cable or satellite TV subscription. The service has a few million users for its expanding offering which Locast currently covers roughly 55% of the US with operations in 36 markets.

On August 31, that all changed. a New York federal court granted partial summary judgements in the high-profile copyright case against the service brought by the four major broadcast networks.

The Court concluded that Locast's reliance on a loophole in coppyright law created to allow nonprofit organizations to operate secondary transmission services did not cover Locast's service.

The ruling is a major blow, but it's only a partial ruling. There may still be a trial. But the day after the ruling, Locast notified its users that it was ceasing operations immediately.

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.


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

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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