Comedy and The Legals

Posted on 10 January 2011

I am not a lawyer, nor do I have any legal training. I have, however, a lot of experience working with legal agreements.

The instant you work in the performance and arts industries, you will find yourself having to sign contracts and release forms or asking others to sign contracts and release forms. I have done this not just for my comedy, but even for my everyday work designing Web sites and logos.

The Basics

It’s vital to understand certain basic principles concerning contracts. It’s equally vital to understand when contracts and releases are needed and confidently enter into them when the details are right. I have seen people miss out on opportunities because they were afraid to sign any contract when it came to their art and performance. These same people will at times blithely sign purchasing contracts for refrigerators and the like without even reading the document.

A contract will define who the involved parties are: whether it be between two individuals or several companies. The contract will define the parties’s relationship with one another: such as employer and employee, seller and customer, production company and contractor. The contract will also outline what is expected of each party: eg confidentiality, specific work, a release of rights or ownership from one party to the other. Any special language is usually clarified: “x” means “y”. Finally, many contracts will also outline when certain agreements become null. In the case of a confidentiality agreement, the contract will become null when its information becomes public knowledge.

A good contract should be readily understood by the signing parties. Though, some lawyers have a difficult time writing in anything other than legalese. Even so it’s always worth having a lawyer take a quick look over any significant contract you may be signing. They will point out any omissions or problematic wording. If you are the one handing a contract to someone else, it’s useful and polite to go through the points with the other person and honestly explain what they mean. A contract should be about agreement, not binding people to your will.

Negotiations

Big companies will often ask for more than they should in a contract. You will need know in advance how much you are willing to give away, given the particular company with whom you are working. A company may ask for something like all the toy rights to your comedy show. Technically, you should be getting a percentage of those sales. However, you may be making so much money on other aspects of the contract, you might be willing to forego that revenue stream (though I wouldn’t recommend it). Some smaller public television channels will also ask for more than they should, because they are a bit desperate for the money. You will have to decide whether or not it’s worth it for that foot in the door with them as well.

Once you know where you are willing to be flexible, you don’t have to start negotiations by being flexible. You are much better off by stating upfront what you want out of the agreement, then bending when you have to. For small productions such as an agreement concerning the takings for a fringe festival show, you will need to do this for yourself. For bigger productions which involve more money, it’s useful to have an agent, manager, or lawyer who will keep you from giving away too much or alternatively getting too stubborn.

Often the other side of a contract is willing to let you push for what you want, especially if you are pleasant and polite. I easily changed several things in my contract with Reed Publications for my book Surf’s Up. The contract was standardised, not set in stone. I remember other authors who out-right signed that contract, grumbling about the terms later on. From simply asking, I was free of those same terms.

Here are some thoughts that should help you feel more confident when you enter negotiations.

You are the goose who lays the golden eggs. Low-level contractors sometimes forget this and believe the “egg” is more valuable than the “goose”. The dotcom era was notorious for this. People would buy certain intellectual property, but without the know-how of the people who first conceived and created it, they couldn’t build a sustainable business from the property. You are the person who is bringing in ticket sales or film and television viewers, if a contractor asks too much from you, they will lose both goose and egg.

It’s okay to walk away from a bad deal no matter how big the company or how big the star with whom you are signing an agreement. From experience I can say with conviction, if a deal looks like it could lead to a big prize but at the cost of a lot of grief, don’t sign it. Be careful that it’s not a matter of your ego getting in the way, but otherwise life is too short to muck around with unpleasant people and situations. You can find something better. Just remember that the other side is in the same position concerning yourself.

Particular Documents

For those in comedy the legal documents you are most likely to see are: release forms, confidentiality agreements, work for hire, profit sharing and venue agreements. The last two I will have to deal with in another post. Nevertheless, I can offer a few points concerning releases.

Once you are dealing with a group of people, be it for a stage show, television series, short film, feature film, etc, you MUST have release forms. Everyone must understand what is expected of them, everyone must agree that this is a group endeavour and a public endeavour, and allow the production team to do what is necessary to create and sell your performance. The problem is that without release forms, one person can cause everyone’s hard work to go to waste.

As an example imagine a symphony orchestra with eighty some people in it. Let’s say that orchestra decides it wants to make a CD of their music. This will bring more money in to pay their wages. If none of them signs a release, but the third violinist decides (s)he doesn’t want to be represented by her/his performance on the day of their recording, then that person can withdraw their consent to have their music published and sold. This of course means no one’s music is published and sold. So the entire orchestra loses money due to this one individual’s change of heart.

What a release will most prominently ask for is your “moral rights”. In this case we are speaking of a legal term not religious or philosophical. Moral rights have to do with those rights creators have in their creation. These include the right to be attributed as the creator of a work, but also the right to publish a work anonymously or pseudonymously; and the right to the integrity of a work, to not have a creation altered in any way without the creator’s permission. Copyright can be sold without necessarily selling moral rights: eg, you can publish my book, but you are still required to put my name on the cover. When a comedy performance is recorded for television, the performers have to sign over their moral rights concerning alteration to give the production company the right to edit that performance. Otherwise, the performers could sue the company simply for cutting in a shot of the audience laughing at a joke.

Conclusion

When you are just starting out and joining with other people who are just starting out, they are still going to have to ask you for legals precisely because of the precariousness of any collaboration. You can’t merely trust one another, you have to trust one another enough that you are willing to lay things out in writing and sign your name to it. If you don’t trust all parties involved then don’t even bother with the contract. You can’t be 100% protected from someone who is untrustworthy, no matter how well written the document.

If you are working together for gratis, but your intent is to break into the arts market professionally, it really does create more harmony amongst the group if everyone knows what is expected of them and where they stand. Being willing to behave responsibly and cooperatively with a group is a very good way to build success. Don’t be afraid of the legals. Use them as a foundation for good relations amongst your team.

Peace and kindness,

Katherine


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