Hollywood Dealmaking

Negotiating Talent Agreements for Film, TV and New Media

Dina Appleton,Daniel Yankelevits

• Publisher: Allworth
• Year: 2011
• ISBN:
  9781581157369
• Edition: 2
• Topic: Law
• Subtopic: Media & Entertainment Law
• Index: Law

Hollywood Dealmaking has become the go-to resource for new and experienced entertainment attorneys, agent trainees, business affairs executives, and creative executives. Entertainment attorneys and Hollywood insiders Dina Appleton and Daniel Yankelevits explain the negotiation techniques and strategies of entertainment dealmaking and detail the interests and roles of producers, writers, actors, directors, agents, and studio employees in crafting a deal. This new edition captures the dramatic changes over the past five years in the film and television industry landscape, with two new chapters: "Reality Television" details the sources of revenue, syndication possibilities, and format sales of these shows as well as the talent deals that are made, and the "Internet/New Media" chapter delves into new digital formats such as mobile phones, game consoles, video-on-demand, and web-based apps, and explains where today's revenues are generated, where the industry is headed, and talent negotiation issues. All the ins and outs of negotiating are explained, including back ends, gross and adjusted gross profits, deferments, box office bonuses, copyrights, and much more. This easy-to-follow reference is packed with expert insights on distribution, licensing, and merchandising. The book's invaluable resource section includes definitions of lingo for acquisition agreements and employment deals, twelve ready-to-use sample contracts, and a directory of entertainment attorneys in both New York and Los Angeles. In Hollywood Dealmaking, readers will recognize the key players in the process, understand the "lingo" of crafting deals, learn how to negotiate agreements for the option and purchase of books and screenplays, be able to negotiate employment deals for all members of a film or television crew, understand payment terms and bonuses, and be able to register copyrights in scripts and other literary works. Allworth Press, an imprint of Skyhorse Publishing, publishes a broad range of books on the visual and performing arts, with emphasis on the business of art. Our titles cover subjects such as graphic design, theater, branding, fine art, photography, interior design, writing, acting, film, how to start careers, business and legal forms, business practices, and more. While we don't aspire to publish a New York Times bestseller or a national bestseller, we are deeply committed to quality books that help creative professionals succeed and thrive. We often publish in areas overlooked by other publishers and welcome the author whose expertise can help our audience of readers.

SAMPLE CONTRACTS/FORMS

CERTIFICATE OF AUTHORSHIP/CERTIFICATE OF EMPLOYMENT

Reference is hereby made to that certain motion picture (“Picture”) presently entitled “____” for which ____ (“Employee”) is to perform services as director and producer pursuant to an agreement (“Agreement”) dated as of July 19, 2001, between [Name of Loan-Out Company] (“Lender”) and Century Studios (“Company”).

Lender and Employee, for good and valuable consideration (receipt of which is hereby acknowledged), hereby certify and agree that (i) all of the results and proceeds of the services of any kind heretofore rendered by and hereafter to be rendered by Employee in connection with the Picture and (ii) all ideas, suggestions, plots, themes, stories, characterizations, and other material, whether in writing or not in writing, at any time heretofore or hereafter created or contributed by Employee which in any way relate to the Picture or to the material on which the Picture will be based are and shall be deemed works “made for hire” for Company. Lender and Employee further acknowledge, certify, and agree that as between Employee and Lender, on the one hand, and Company, on the other, Company is and shall be deemed the author and exclusive owner of all of the foregoing for all purposes and the exclusive owner throughout the world of all of the rights comprised in the copyright thereof, and of any and all other rights thereto, and that Company shall have the right to exploit any or all of the foregoing in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all languages as Company determines. Lender and Employee will, upon request, execute, acknowledge, and deliver to Company such additional documents as Company may reasonably deem necessary to evidence and effectuate Company’s rights hereunder, and hereby grant to Company the right as attorney-in-fact to execute, acknowledge, deliver, and record any and all documents which Employee and/or Lender fail to execute within five (5) days after so requested by Company.

Lender and Employee warrant that except as contained in material furnished Employee and/or Lender by Company, all literary, dramatic, musical, and other material and all ideas and designs (“Material”) of Employee used in connection with the Picture are wholly original with Employee or in the public domain; shall not infringe upon or violate any copyright of, or, to Employee and Lender’s best knowledge (including that which Employee and Lender should have known in the exercise of reasonable prudence), infringe upon or violate the right of privacy or any other right of any person or entity, and are not the subject of any litigation or claim that might give rise to litigation; and that Lender and Employee are free to grant all rights granted and make all agreements made by Lender and Employee herein. Lender and Employee agree to hold Company and its successors, licensees, and assigns harmless from and against all damages, losses, costs, and expenses (including attorneys’ fees) which Company or any of its successors, licensees, or assigns may suffer or incur by reason of any breach of any of the warranties made by Lender and/or Employee herein or in the Agreement. Company hereby agrees to hold Lender and Employee harmless from and against all damages, losses, costs, and expenses which Employee may suffer or incur by reason of any breach of any warranty made by Company in the Agreement and any other claim arising from Company’s development, production, distribution, or exploitation of the Picture in respect of which Lender and Employee have no obligation to indemnify Company hereunder or under the Agreement.

In the event of any breach by Company of the Agreement, the sole remedy of Lender and Employee shall be an action for money damages, and Lender and Employee shall not have any right to enjoin, restrict, or otherwise interfere with Company’s rights in the Material.

Executed as of July 19, 2001

________________ ________________

By: By:

NUDITY RIDER

Reference is made to the Agreement, dated as of July 19, 2001, (the “Agreement”) between Century Studios (“Company”) and [Actor’s Loan-Out Company] (“Lender”) for the acting services of ___ (“Artist”) in connection with the theatrical motion picture currently entitled _ (“Picture”).

Artist understands that the role of “____” shall require Artist to appear wearing lacy lingerie (which may reveal portions of her breasts and buttocks) while dancing in a sexual manner as set forth in scene 18 (pages for which are attached hereto), and shall require Artist to appear topless (with her breasts revealed) in scene 51 (pages are attached hereto) of the screenplay (“Screenplay”) draft dated____. Company acknowledges that in no event shall genital nudity be required of Artist. Artist hereby agrees to perform all of such scenes as set forth in the Screenplay and acknowledges that Artist’s refusal to perform said scenes as set forth in the Screenplay shall constitute a material breach of the Agreement.

In the event that the Screenplay is rewritten or otherwise altered and Company wishes to make material changes in such scenes, or Company wishes to include additional nude and/or sex scenes, Company shall consult in good faith with Artist as to such changes, and Artist shall have the right to refuse to perform such additional scenes and to deny Company the option to use a nude body double to portray Artist in such scenes. If Artist has agreed in writing to appear in any such scene and subsequently withdraws her consent, Company shall have the right to utilize a nude double for said scene, provided, however that the extent of such double’s nudity shall not exceed that agreed to in writing by Artist. Provided Artist is available as reasonably requested by Company and subject to the exigencies of the production, Artist shall have the right to designate Artist’s body double, provided that in the event of a disagreement, Company’s decision shall be final and controlling.

All such scenes and any other nude and/or sex scenes shall be shot on a set closed to all persons not having an essential purpose in connection with the filming of such scenes.

Company shall not authorize any still photographs or likenesses of Artist in the nude to be taken or reproduced in any manner whatsoever from any frame, footage, or outtake of the Picture or otherwise used for any purpose whatsoever, including, but not limited to, in connection with advertising, publicity, trailers, or otherwise without Artist’s prior written approval, provided that the foregoing shall in no way limit the Company’s right to use such footage as part of the final edited version of the Picture.

Pursuant to the terms and conditions of the Agreement, Company shall own all results and proceeds of Artist’s services rendered pursuant to the Agreement and shall have the exclusive right to use, license, and exploit the Picture and Artist’s performance therein, throughout the world in perpetuity in any and all media, whether now known or hereafter devised.

All the terms of the Agreement shall remain in full force and effect without modification or change.

AGREED AND ACCEPTED:

PUBLISHER’S RELEASE

In exchange for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby acknowledges and agrees, for the express benefit of Century Studios, Inc. and its representatives, successors, and assigns forever, that the undersigned has no claim to or interest in the worldwide motion picture or television rights or customary ancillary or subsidiary rights or any other rights of any kind other than print publication rights heretofore granted to the undersigned, in or to that certain literary work published by the undersigned and described as follows:

TITLE: ________________

AUTHOR: ________________

DATE/PLACE OF PUBLICATION: ______________

COPYRIGHT REGISTRATION: #________________

The undersigned hereby consents to the publication and copyright by and/or in the name of said author, author’s heirs, representatives, licensees, and assigns, in any and all languages, in any and all countries of the world, in any form or media, of synopses, excerpts, and summaries, not exceeding 7,500 words in length each, of said literary work, based principally upon said literary work, for the purpose of advertising, publicizing, and/or exploiting any such motion picture, television, or other version. There shall be no limitation in length, however, with respect to any motion picture, television, or other version not based principally upon said work, including, but not limited to, sequel motion pictures and television series.

SIGNED: [BOOK PUBLISHER]

MATERIALS RELEASE/SUBMISSION RELEASE

DATE:

Gentlemen/Ladies:

1. I am submitting to you herewith the following material (hereinafter referred to as “said material”):

TITLE:

FORM OF MATERIAL (e.g., story, screenplay, treatment, novel, play):

PRINCIPAL CHARACTERS AND BRIEF SUMMARY OF THEME/PLOT:

WGA REGISTRATION NUMBER:

NUMBER OF PAGES:

2. I request that you read and evaluate said material, and you hereby agree to do so, and if I subsequently make a written request, you agree to advise me of your decision with respect to the material.0

3. I warrant that I am the sole owner and author of said material, that I have the exclusive right and authority to submit the same to you upon the terms and conditions stated herein, and that all of the important features of said material are summarized herein. I will indemnify you of and from any and all claims, loss, or liability (including reasonable attorney’s fees) that may be asserted against you or incurred by you, at any time, in connection with said material or any use thereof.

4. I recognize that you have access to literary materials and ideas which may be similar or identical to said material in theme, idea, plot, format, or other respects. I understand that no confidential relationship is established by my submitting the material to you hereunder.

5. I understand that you have adopted the policy, with respect to the unsolicited submission of material, of refusing to accept, consider, or evaluate unsolicited material unless the person submitting such material has signed an agreement in a form substantially the same as this agreement. I specifically acknowledge that you would refuse to accept, consider, or otherwise evaluate my material in the absence of my acceptance of each and all of the provisions herein. I shall retain all rights to submit this or similar material to persons other than you.

6. I have retained at least one copy of said material, and I hereby release you of and from any and all liability for loss of, or damage to, the copies of said material submitted to you hereunder.

7. I enter into this agreement with the express understanding that you agree to read and evaluate said material in express reliance upon this agreement and my covenants, representations, and warranties contained herein, and that in the absence of such an agreement, you would not read or evaluate said material.

8. I hereby state that I have read and understand this agreement and that no oral representations of any kind have been made to me, and that this agreement states our entire understanding with reference to the subject matter hereof. Any modifications or waivers of any of the provisions of this agreement must be in writing and signed by both of us.

9. If more than one party signs this agreement as submitter, the reference to “I” or “me” throughout this agreement shall apply to each such party jointly and severally.

10. Should any provision or part of any provision be void or unenforceable, such provision or part hereof shall be deemed omitted, and this agreement with such provision or part hereof omitted, shall remain in full force and effect. This agreement shall at all times be construed so as to carry out the purposes hereof.

Very truly yours,

____________ ____________

Signature Street Address, City and Zip Code

____________ ____________

Print Name Phone Number

ANNOTATION GUIDE

For each element in the written material (whether such element is a character, an event, a setting, or section of dialogue), furnish the following information by written notation in the margin:

1. Whether the element presents or portrays:

• An actual person or fact, in which case, the note should indicate whether the person’s name is real, whether (s)he is alive, and whether (s)he has signed a release

• Fiction, but a product of inference from fact

• Wholly fiction, not based on fact

2. Source material for the element:

• Book

• Newspaper or magazine article

• Recorded interview

• Trial or deposition transcript

• Any other source

NOTE: Source material identification should give the name of the source (e.g., the Los Angeles Times), page reference (if any), and date. To the extent possible, identify multiple sources for each element. Retain copies of all materials, preferably cross-indexed by reference to page numbers. Coding may be useful to avoid lengthy, repeated references.

PERSONAL DEPICTION RELEASE

Dated as of: ______________

(NAME)

(ADDRESS)

Re: Personal Depiction Release

Dear Sirs:

I, ____, understand that _ (“you”) is developing a television project (the “Program”) to be based upon my life (the “Property”). As the Program may include a portrayal and/or depiction of me, I hereby grant to you the following rights:

1. For good and valuable consideration, receipt of which is hereby acknowledged, I hereby grant to “you,” which term shall include not only yourself, but your employees, agents, affiliates, parent, directors, officers, successors, licensees, and assigns, the irrevocable right and license to depict, use, and simulate in any and all media worldwide and in perpetuity my name, likeness, and life story, including, but not limited to, my interviews, actions, activities, career experiences, and personal biography, both actually and fictionally, in connection with the Program, and any remakes or sequels based thereon. I further grant to you all right, title, and interest in and to any ideas that I may have conveyed to you during any interviews with you for use in or in connection with the production, distribution, exhibition, advertising, and other exploitation of the Program. The rights herein granted to you shall include the right to depict and/or portray me, my personal history, and biographical facts, and to fictionalize my name, face, likeness, personal history, and biographical facts to such extent and in such manner as you in your sole discretion may determine in connection with the Program.

2. Further, you shall have the right to distribute, exhibit, or otherwise exploit the Program, and any and all remakes or sequels based thereon, in whole or in part, worldwide and in perpetuity, by any method and in any media whether now known or hereafter devised, including, but not limited to, theatrical, nontheatrical, and all forms of television, cable, DVD, and videocassette, and to grant and/or assign such rights to third parties without limitation.

3. In making this grant, I understand that you will rely thereon in proceeding with the development and production of the Program, and the other exploitation thereof, and that you will incur substantial expense and contractual obligations based upon such reliance.

4. I warrant that I have not been induced to execute this document by any means or statements made by you or your representatives as to the nature or extent of your proposed exercise of any of the rights herein...