The contract is the document that spells out the deal. It delineates your rights, both during and (possibly) after the term of the agreement. Although plenty of people ignore the fine print, it behooves anyone working in the entertainment industry to understand what it means. To that end, here are a few more entertainment contract terms (see earlier post for Part I in this series) to know:
Exclusivity
This means pretty much what it means in dating. Are you and the other party going to have an exclusive arrangement or not? And if others are going to be involved, what are the parameters?
What creative and others often don’t realize is that there’s a choice. Your contract does not have to be an exclusive one. A negotiated non-exclusive contract can often be beneficial to both sides.
Consider, for example, a digital distribution deal. You’ve made a film and now you want to have it made available to purchasers through a particular platform or website. If the deal you make is exclusive, that means this platform will be the only one allowed to distribute your film, and you can’t make deals to have the film available on any other services. If the deal is non-exclusive, you would continue to be free to make other deals and place your film with other websites/platforms – unless, of course, one of those platforms demanded exclusivity. Similarly, in an exclusive rights agreement, the creator of the property is agreeing to license the property to the producer or entity with whom he’s making the deal, and not to anyone else.
Options
An option means that one party is buying a certain period of time with regard to the work. In this period of time, there is typically something they will be attempting to get done – say, get film financing in place, or make a production deal with a studio. If they manage to get a deal going during this timeframe, then they will likely exercise their option to buy the work.
Option periods can be for any length of time. Generally, they range from six months to a few years. But depending on what is being optioned (a story, a play, life rights, screenplay) and who’s optioning it, there aren’t many firm rules in terms of how long the option should last. The tension in the negotiation usually revolves around two things: (1) how long the option period will be, and (2) the price to be paid for the option. Producers typically want the longest possible option period for the least possible money. And if you’re the one selling the property, you probably want a shorter option and more money.
Another variable in negotiating option agreements is whether or not the option payment will be applicable against the purchase price, if the buyer chooses to exercise their option and buy the property. Once again, there’s a tension between the buyer, who generally wants the option money to be applicable to the purchase price, and the seller who does not.
Consider too the possibility of renewals and extensions. If, at the end of the option period, the buyer has not yet succeeded, does he want more time? Should the seller give him more time? If there is the possibility of an renewal or extension, is it automatic or are there hurdles to clear before it can be renegotiated?
Options are everywhere in film and television, and figure particularly prominently for writers. The trick is to strike a balance that makes both sides feel they got a good deal, and which is realistic in terms of what might be accomplished and when.
Reserved Rights
When you sell a work, either in an option situation or outright, you are selling some – but not necessarily all – of the rights to exploit that work (which means to make it into other things, such as a film). But you don’t have to sell all the rights. Sometimes, the person selling creative rights decides to, or is able to, retain some of the rights. Because of copyright law, people who create works have the exclusive (there’s that word again) right to make works based on their copyrighted intellectual property. They can also sell this right to someone else. Or, they can sell some rights, and reserve others.
For example, let’s say you write a screenplay. You sell the rights for that screenplay to be made into a movie. Theoretically, you might keep the rights that would allow you to use the story for projects other than film – i.e., stage rights, radio, internet, etc. This is easier said than done in many situations where the balance of power is with the buyer, but it’s not impossible. The first step, as with any negotiable term, is understanding that these choices even exist.
