Anatomy of Entertainment Contracts (Pt. 1)
Photograph by Amina Atar https://unsplash.com/@minaslens.
Most entertainment contracts have the same clauses but are detailed to fit the particular circumstances of the agreement. This post focuses on which clauses in a contract that you as a talent signing an entertainment contract should pay particular attention to. Not all clauses discussed in this post, and in the follow up post, are necessary for every entertainment contract. However for entertainment contracts for performance of a talent, or creative product/project, in exchange for pay, these clauses should be in the agreement, and should be a red flag if they are not. This is Part 1 of 2 posts.
Introductory Clause :
The introductory clause should of course state who the parties are that agreeing. This should include the names, stage name/pen name, addresses, title of the project/event/product/service, date of effectiveness, and time period of the contract (from when to when).
Consideration :
The consideration clause spells out what you will be doing or giving to the other party, in exchange for what the other party will be doing or giving you. This section can include milestones, payment distribution, percentage per item sold or downloaded, etc. All agreements for compensation, transfer of interest in a property, etc., no matter how small, need to be included in the contract, otherwise it can be easily disputed as to whether they were ever part of the contract. If you are entitled to any additional payment distribution after the completion of your obligation, this may be included in this clause or in a separate clause.
Representation & Warranties :
The representation and warranties clause states that the parties are actually able to perform the skills, obligations and/or responsibilities they have represented themselves as having for purposes of the agreement, and for a successful completion of the contract. Sometimes this clause is included with an indemnification clause.
Indemnification :
The indemnification clause explains what exposure a party has under the agreement to liability for a claim that arises between the parties, or from a 3rd party action. Often one party is indemnifying the other party from certain types of 3rd party claims that arise during the course of the agreement.
*Check out my next blog post for Part 2 of Anatomy of Entertainment Contracts. As with all posts on this blog, this is general information and not legal advice. Consult with an entertainment attorney to review your specific situation.
#entertainmentcontracts #entertainmentlaw #indemnification #warranties clause #contractconsideration
Depiction Releases
Photo by Kyle Head
I was reading an article about a recent settlement that resolved a lawsuit against Netflix and several producers of the miniseries “Griselda.” Here is the link to the article: https://www.hollywoodreporter.com/tv/tv-news/sofia-vergara-settles-lawsuit-netflix-griselda-1235821431/. Griselda Blanco was a drug lord from Colombia who was based and operating her business from Miami. This is a good article from Rolling Stone about the movie and Blanco’s background: https://www.rollingstone.com/tv-movies/tv-movie-features/griselda-blanco-sofia-vergara-netflix-cocaine-miami-drug-trafficking-murder-1234965871/. It includes an interview with Blanco’s son, who initiated the lawsuit.
One of the issues the Hollywood Reporter article says was a basis of the suit was that Blanco’s son and his wife were depicted in the miniseries without their permission. Depiction releases need to be addressed in pre-production. It’s typically necessary to show that all necessary releases have been obtained for purposes of distribution. They typically involve paying a person to allow you to depict them in their work, and them agreeing to let you use their name, their likeness, personal information, and other aspects of their life, in exchange for not suing you for defamation, invasion of privacy and, in jurisdictions that recognize rights of publicity, violation of the right to publicity. The release is irrevocable and perpetual to prevent a person from being able to withdraw consent halfway through filming, or when it’s getting ready to air. There’s usually language in a release that the user of the depiction has the right to use the depiction in a variety of media and in a variety of ways without needing further permission.
There are times when a depiction release is not needed, or can be avoided. If the information being used can be considered to fall within the category of “fair use,” then there is a likelihood that a release is not needed. If the person is deceased there is no release needed assuming you are not using material that is not still copyright protected like photographs, paintings, music, etc., and not in a jurisdiction that has post-mortem rights of publicity. Right to the privacy, or claims of defamation, of a deceased person do not transfer to his estate or his heirs.
Whether or not you get a depiction release can be the difference between a peaceful release of a film, tv show, etc., or a potential lawsuit by the person being depicted, no matter how slight or suggestive, for a massive amount.
Photo by Romain Dancre.