Producer A and Producer B walk into a bar. Producer A tells Producer B about her ‘great idea’ for a television series and asks B if he’d like to work with her. Producer B, so excited by A’s ‘great idea,’ nearly knocks over his beer as he exclaims, ‘Let’s do it!’
They discuss their creative visions late into the night and spend the next several months developing the series. It seems like the project could really take off. Several broadcasters are interested. There might even be a bidding war! And then – disaster. Sadly, Producer A and Producer B never thought to work out the fine points, or for that matter, any points, of the deal between them. Now they can’t agree on key issues and no broadcaster is willing to wade into the brewing war. The project is stuck in no man’s land.
Don’t let this happen to you.
Collaborating with a fellow producer can be a rewarding experience, and two heads are often better than one. But don’t assume that a shared creative perspective will carry over to the legal and business realms. Before diving in and devoting time, money and creative sweat to a project with a compatriot, make sure you know what each side expects from the joint effort. Avoiding discussion of business and legal issues until it’s too late is all too common. Having seen several projects derail due to an exclusive focus on creative matters, I urge producers to have a written, signed agreement between them laying out the who, the what and the how much. Any such agreement should include provisions addressing the following topics:
Contributions of the parties: One producer may be contributing financing and the other the concept. Figure out whether those contributions have equal value, as the relative contributions of the parties will help determine issues of ownership, control and division of profits.
Copyright ownership: In most cases, coproducers will share copyright ownership and jointly register the copyright. Under copyright law, when two people share copyright ownership, either person may exploit the work in any way they like, without the consent of the other, as long as 50% of the profits are provided to the co-owner. In some cases, joint copyright ownership may not be practical or desirable. As copyright ownership affects everything from errors and omissions insurance to whether your work will ever see the light of day, make sure to clarify this issue early on.
Decision-making authority: Avoid a situation in which a broadcaster has made an offer, but you and your partner cannot agree on whether to take the deal. To eliminate this potential deal torpedo, you can agree to consult with each other on all matters concerning the program, but assign one person the final say if you cannot reach an agreement.
Division of profits: Profits should be divided depending on what each party is bringing to the table. Sometimes a 50/50 split is appropriate, but in other cases an equal split may not make sense.
A written agreement, even if only a page or two in length, acts as a blueprint for dealing with matters that arise during and after production, and assures broadcasters that issues of contested ownership and the like will not rear their ugly heads. Think about what you want and expect from the collaboration before jumping in, make sure you and your potential partner are on the same page, and put your understanding in writing at the outset. Otherwise, you might be rushing headlong down a road to nowhere.
Nicole Page is an attorney specializing in entertainment and intellectual property law in New York. Many of her clients are in the film and television industries, and include numerous filmmakers, feature film and tv prodcos, directors, writers, distributors and talent. Page is also a development exec with Engel Brothers Media.