The Devil is in the Details

To avoid TV purgatory, ask before you sign
September 1, 2004

Hallelujah. You’ve sold a doc concept or finished program to a commissioning editor(s), their internal paperwork has reached their business affairs department and a long-awaited draft agreement for pre-sale/coproduction or licensing has arrived. You’ve already agreed to the amount of money involved. With a production start date looming or the need to see a return on that title in the inventory, the overwhelming urge is to just sign the thing and send an invoice. Don’t do it. The contract and its terms are negotiable and it’s in your best interest to engage in the process.

Beware of precedent

Every contract sets a precedent for future agreements. Whatever you accept now is likely to become something you must live with in any future dealings with that company. This is not so much of a liability when licensing finished programs (except in regard to payment schedules), but it can have a significant impact on production deals, such as copros and pre-buys.

Tweaking the terms for production

Check that you’re getting the cash flow you need. Production payment schedules should be negotiable if your budget and production plan support the need. Also, are there reasonable time limits for approvals? If the project is on a tight schedule, request a contractual turnaround that reflects that.

After months spent seducing the commissioning editor of your project, you’re not likely to warm to, heaven forbid, a substitute. If the contract doesn’t name the commissioning editor, you may want to consider asking for a ‘key man’ clause.

Any treatment attached as an appendix must be a version that corresponds to the approved budget, otherwise you could be promising to deliver something for which you’re not budgeted. And, make sure you are completely familiar with the list of deliverables. Ask to omit anything that’s overtly gratuitous or separate certain items onto a list labeled ‘as available.’

Set limits for licensing

It’s wise to negotiate for a short license period, or seek a windowing arrangement. In today’s multi-channel environment, a shorter initial license period can make the difference between additional income from a territory, or none. Also, pay attention to the number of transmissions. Cable/satellite services are usually less flexible, but terrestrial broadcasters understand that multiple transmissions can dampen enthusiasm for secondary licensing.

Straight license fee payment schedules with terrestrial broadcasters are normally fairly prompt – 50% on signature, 50% on delivery and acceptance of materials. Or, 100% on delivery if it’s a company you’ve dealt with before that has proved reliable. Unfortunately, many cable/satellite services are operated by parent companies engaged in seemingly complicated, Enron-esque internal accounting and finance structures. Payment schedules can be proposed as spread out over 12 to 24 months. Such terms are untenable for indies. Don’t be shy about pushing hard on this point – unless you have similar interest-free payment terms with your vendors.

It’s not over until the edits and credits

This is your work, so identify your comfort zone for edits. If the contract language indicates editing will be undertaken to conform to time slot requirements, make sure you know what those are. Ask for additional language that says the program will not be shortened more than ‘X’ minutes – the difference between your finished length and the slot length – without prior approval, ‘not to be unreasonably withheld.’ If significant editing is going to be undertaken by the broadcaster, ask for approval of a ‘paper cut’ – a marked-up transcript.

Unless the fees were so generous you’re happy to have footage used generically, limit promotional use of excerpts to three or four minutes, and stipulate that they may be used to promote your program or its timeslot only. Check too that your credits conform to the broadcaster’s guidelines, and make sure yours don’t get shortchanged on air. Also, credits appearing elsewhere should be reciprocal – if their executive producer is referenced in a press release, yours should be too.

After more than 20 years in the international television business, Louise Rosen is still having a devilishly good time representing indies and working with broadcasters on every continent.

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