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Making agreements agreeable

Attorney Nicole Page examines the issues surrounding the often expensive quest for bulletproof talent agreements and offers tips on how producers and networks can come to terms with sharing the burden.
June 14, 2013

In the quest for bulletproof talent agreements, networks are demanding that producers have potential talent sign sizable documents, which can require legal counsel and cost money… sometimes a lot of it. Nicole Page examines the issue and offers tips on how producers and networks can come to terms with sharing the burden.

 

Over the years, broadcast talent agreements and even appearance or guest releases have evolved into mega-documents. Gone are the days of a simple, single-page appearance release. Now, it is not unusual for broadcasters to require that a multi-page agreement be signed for incidental, background characters.

Even for a casting reel, when little or no money has been put on the table by the network, it is becoming commonplace to demand that producers have potential talent sign lengthy and formidable agreements. This often requires the producer to engage legal counsel to assist in negotiating the agreement with the prospective talent, who, if they can afford to, will secure their own counsel to try to decipher the agreement on their behalf.

All of this occurs long before the words “green light” ever leave the broadcaster’s lips. At that early stage of the game, the burden of the legal fee falls solely on the shoulder of the producer. So what is a production company to do? And what are networks so afraid of anyway?

Through my experience in negotiating talent agreements on behalf of several production companies as well as numerous conversations with producers, agents and business affairs executives at the major cable networks, I’ve learned that the second question is much easier to answer than the first.

Networks (a.k.a. “the deep pockets”) are naturally interested in ensuring that their talent agreements and releases are as bulletproof as possible in order to head off potentially costly claims and litigation. That is why those agreements can be filled with provisions granting the broadcaster the right to do everything from “fictionalizing” the depiction of the individual to, in some cases, mounting cameras in the bathroom. It is no secret that we live in a litigious society and individuals who do not like how they are portrayed on television would undoubtedly be flooding the networks (and production companies) with claims, absent agreements or releases under which they waive their rights to do just that. Even when agreements are signed, claims and lawsuits still occur, so releases are clearly an integral and necessary part of the reality television business.

Plus, both producers and broadcasters are often well-served by locking talent to exclusivity obligations and per-episode fees early in the game. In the words of a senior attorney at one of the larger networks: “You have to pay the piper at some point and from where we sit it’s much better to have that accomplished right at the start before things get too complicated with the talent.”

The problem arises when the agreements become so incomprehensible, onerous and daunting that casting and securing signed talent agreements, especially where no obvious monetary incentive for the talent is involved, becomes a Herculean endeavor. Even as ratings for the big character-led cable docusoaps are eclipsing those for network shows (see Duck Dynasty), production companies continue to be squeezed by networks to make deals with talent that seem to benefit no one but the nets.

As one top non-scripted television agent who wishes to remain anonymous sees it: “Production companies are placed in the terrible position not only of serving as middle-man between the talent and the broadcaster, but of having to try to shove a terrible deal down the throats of the talent, and having the extra bonus of paying all of the legal fees.”

A further problem arises when trying to obtain a signature on a multi-page guest release for a one-off appearance during production in the field. An important question for all parties to ask is this: are multi-page releases that no one reads, signed in the midst of production, even enforceable? A word of advice to broadcasters and producers: lengthy guest releases containing a clause whereby the individual represents that he or she has had the release reviewed by counsel – and I have seen many that do – should be promptly revised. It is one thing to include that phrase in an agreement for recurring talent who receives an agreement weeks or months before production begins and actually has the chance to show the agreement to an attorney. But to include it in a document presented to an individual in the field who likely signs and hands it back to the producer without even reading it could threaten the validity of the entire release, and that’s a chance no one wants to take.

Regarding the first question of what a production company could do, here are some thoughts. Once in production, at least there is a budgeted line item (typically 1%-1.5% of the budget) for legal expenses which can help defray the costs associated with locking down the talent. But before that, when in the development or pre-production phase, it would be more than fair for the networks who are insisting on the use of these behemoth agreements to share in the cost of having them negotiated and signed.

One way of looking at this issue suggests that nets are essentially outsourcing a large amount of production legal work to production companies and not paying for it. A typical budget for a casting reel could range from $10,000 to $60,000, depending on the broadcaster. However, legal fees are not normally included in that budget and even if they are, the amount allocated is unlikely to cover the necessary legal work, especially in the case of a multi-character show. That being the case, producers should consider asking for an appropriate legal fee line item for development or casting reels.

Of course, producers can often find themselves in the David role when dealing with the network Goliaths, but if you don’t ask, you’ll never receive. Understanding that in the U.S., 99% of the upside of a successful show is reaped by the network, it is hardly unreasonable for it to do some of the heavy lifting, at least in the financial sense, in getting talent agreements signed. After all, it is the networks that are insisting upon these super-sized agreements in the first place.

 

Nicole Page is a partner specializing in entertainment and intellectual property law at Reavis Parent Lehrer LLP, and is senior director of development and head of business affairs at Engel Entertainment.

 

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