Entertainment Contracts: Part Two–Clauses to Include

In my last blog article, I wrote about the basics of every contract. But there are a few other clauses that should be in every entertainment contract, although these are sometimes overlooked.

Here is a brief (and I emphasize the word brief) description of some of those paragraphs that should be included. As always, for a more thorough discussion of entertainment contracts, please refer to Volume 4 of the DVD series, “What Every Filmmaker Needs to Know About the Law.”

Work for Hire

If you’re hiring someone to do work for you on a film, you need to be sure that your agreement specifies that the work is a “work for hire” under copyright law. Why is this important? Because you want to make sure you own all the rights to the work in your film.

Under U.S. copyright law, an employer owns all the rights to the work done by an employee in the course of his employment. However, if the worker is not a regular employee, or the work being done is not part of his/her regular job description, the copyright in the work belongs to the worker.

Where the “work for hire” doctrine does not apply automatically, copyright must be transferred in writing. Even though workers on a film are almost universally categorized by law as employees, and not independent contractors (another common mistake among filmmakers), it’s a good idea to clarify the intent that the work being done belongs to the film maker.

Right of Assignment

Another provision that you should have in every entertainment agreement is the right to assign the agreement. Why? Because it’s very likely that you will transfer your rights at some point during the production or distribution of your motion picture.

If you decide to form a new entity for your production, or when you license or sell your movie to a studio or distributor, you will need to be able to transfer the rights to that other entity. The right of assignment gives you legal permission to do so.

In a similar vein, you don’t want your workers to be able to assign their obligations under the agreement. Obviously, if you hire someone to do a job because you think they’re the right person to do it, you don’t want someone else showing up to do the work. You can avoid this by saying that you may assign the agreement but the worker can’t.

No Obligation to Use

A common provision in motion picture agreements is a statement that says the production company is not obligated to use the person or their work in the final motion picture. Why? Because our industry being what it is, sometimes people take jobs so their work will be seen, perhaps taking a reduced fee to be associated with the production.

When you’re editing your movie, you may decide to change the narrative and delete or add scenes. Or you may decide that some of the work isn’t up to par and you want to redo it. You want to be sure that no one can force you to use a scene you’ve decided to delete.

In order to manage expectations, you should get the worker’s agreement in writing that you have no obligation to use their work.

No Injunction

There is a flip side of that principle. Under copyright law, the copyright owner may legally prevent the use of his or her work. We call that an injunction.

In the context of motion picture, that means one of your workers could stop you from showing your movie. By including a clause that says the worker has no right to an injunction, you preclude them from deciding, after the fact, that they don’t want you to use their work.

For More Information

In my book and video on Contracts, volume 4 of the What Every Filmmaker Needs to Know About the Law series, I discuss in great detail entertainment agreements, presented in a way that a lay audience can easily understand. That DVD is a great resource for understanding entertainment transactions and I recommend you take advantage of it. If you don’t already own the set (which is available at a discount to my readers), go to the What Every Filmmaker Needs to Know About the Law website to purchase it today.

If you’d like my help with your production or your agreements, click the “Production Counsel Website” link above.

© Keith E. Cooper. All rights reserved. You may freely link to this post, but please do not copy (in whole or in part) without permission of the copyright owner.


Comments are closed.