Contracts

[sarcanon]

DP's I've worked for would complain about clauses in some of the larger companies' contracts protecting the recorded content in other galaxies and universes. I was never sure if they were joking or not. 

Clearly, the lawyers who drafted those contracts were amateurs.

A properly drafted definition of the subject territory should include not only all other universes, but all other dimensions as well.

 

[David Waelder]

I'm going to swim against the tide on this and suggest that efforts to construct a tight contract are misplaced.

It's not that one shouldn't have a documented agreement that is fair to all parties; it's rather that these agreements tend to be unenforceable without costs that make the matter moot. Most attorneys will tell you that there is no point in litigating any matter with less than $25,000 or $50,000 at issue. (And even those sums are marginally sufficient to support legal action.) One could attempt to secure a judgment in small claims court but actually collecting can be quite difficult and permissible recovery sums often fall a bit below a week's wages.

Every contract relies to some degree on the good faith of the various parties. With good faith, the contract serves to clarify responsibilities but, without good faith, recovery requires substantial resources to compel compliance.

If you do have a bad faith client, they will be able to burn you for a few days wages or, perhaps, a week. If checks are not forthcoming after a week, or if they bounce, you can refuse to work any longer until either money or credible assurances are produced. It's a bummer to be cheated of a week's wages but not a calamity.

But, under no circumstances should a technician sign an agreement that yields important issues to the employer. Presented with a unconscionable contract, workers should (as Phillip did) X-out the clauses that grant too much to the producer. It's best, I think, to walk away from assignments that demand that one sign away all rights. No good is likely to come from working for a producer who seeks to exploit you before you've even located the crafts service table.

The one thing I think every technician supplying equipment should demand is a signed document that specifies that the production is renting your gear and assumes responsibility for its safety. This can be a very simple document. I have one that is only three sentences that I can post here if people are interested. This document is more important than the insurance certificate and gives you legal position to make a claim with the production's insurance company.

Of course, if you are a member of a trade union, you can refer producers with one-sided contracts to your Business Agent.

David

Edited September 18, 2015 by David Waelder

[Rachel Cameron]

"...I have one that is only three sentences that I can post here if people are interested. This document is more important than the insurance certificate and gives you legal position to make a claim with the production's insurance company..."

Thanks David, for that offer, and the comments. Would you please PM me a copy? I'd love to look it over.

[sarcanon]

It's not that one shouldn't have a documented agreement that is fair to all parties; it's rather that these agreements tend to be unenforceable without costs that make the matter moot. Most attorneys will tell you that there is no point in litigating any matter with less than $25,000 or $50,000 at issue. (And even those sums are marginally sufficient to support legal action.) One could attempt to secure a judgment in small claims court but actually collecting can be quite difficult and permissible recovery sums often fall a bit below a week's wages.

Normally, I would agree with what you say in many cases about contracts being unenforceable in the practical sense, if not the legal sense.

However, if you make certain the contract has a clause that awards attorneys fees and all costs of collection to the prevailing party, then that's a whole other situation. As long as you have a clear case of non-payment, and if your creditor is financially solvent and not otherwise judgement-proof, an attorneys fees clause shifts most, if not all, of the costs of litigation to the other party, and getting a debt collection lawyer involved will be a piece of cake.

And if the amount in question is low enough, you can hire a collection agency instead.

[David Waelder]

if you make certain the contract has a clause that awards attorneys fees and all costs of collection to the prevailing party, then that's a whole other situation.

If you can get a Production Manager to sign a document with clauses like that, you are a better negotiator than I am. 

David

I should add a smiley face to make clear that I say that with all good intent and wishes. But managing to get a producer to agree to a contract is an essential part of the process. And, generally, it works against the normal flow of work assignments to engage in a detailed negotiation with every call.

Edited September 18, 2015 by David Waelder
Insert missing quote

[Philip Perkins]

RE the contract I mentioned above, I really thought this producer was doing himself no favors by insisting on it at such a late moment.  This just wasn't that big a job, and I generally do far larger and more complex gigs without contracts, for the reasons stated above.  This guy, as with a lot of solo producers, got some bad legal advice, lawyered up unnecessarily and then was surprised at getting time-consuming pushback.  This hassle kind of soured things during the job, and I doubt we'll work together again.

p

[Rachel Cameron]

Thanks for all the great input, Philip, Dan, sarcanon and especially David for the document. Much appreciated!

It sounds prudent to keep the rental of gear as one agreement, and the terms of the deal...as another. I think Jeff spoke to this on the video conference one day a few weeks ago.

So..crucial poll to those day players on JWS who already use a DM/Contract for their work: is your gear rented as a separate agreement when you do a job?

 

[mikewest]

Ownership of recordings (deemed as mechanical copyright) is transacted once payment is made.

mike

[sarcanon]

Ownership of recordings (deemed as mechanical copyright) is transacted once payment is made.

Well, I cannot speak for copyright law in other countries, but this is not the case in the U.S.

Copyright cannot be transferred without a written instrument, full stop. Mere payment for services would have no effect on copyright ownership.

Except, of course, in the case of an employer-employee relationship, where the work-for-hire provisions would come into play, and here. the copyright would vest in the employer from the moment of creation by operation of law. The employee would never have owned the copyright, and thus has nothing to transfer.

Also, to be clear, 'mechanical copyright' is something else entirely. That is the right to make 'mechanical' reproductions of a copyrighted musical work, and is typically paid by record companies to music publishers for each copy sold of a recording that embodies a musical work, i.e., a song.

 

[Rachel Cameron]

Exhuming my contract thread, for an update, and a question.

I've integrated a newly written simple contract into my workflow. Most sign it, no problems. Checks come faster now. Respect to all who had input.

Before one job started, I had a verbiage 'back and forth' with a rather large 'lawyered up' company, regarding one of the clauses. This was the clause  that Marc Wielage brought up in post #11 here, regarding 'paying them any losses they incur'. Their verbiage suggested that I pay for, and I paraphrase: 'everything if something went wrong". I was able to limit that to (not paraphrased) : 'no liability for any amount exceeding any compensation paid under this agreement'. Fair enough. Capped. They were happy with that. 

My new question is for those who use contracts for every job.

Those jobs where the call comes in literally the day before: You get a call, agree on some basic terms, day rate, standard stuff, etc...on the phone. That evening, you send a contract right away. The next day, their office collects their email, begins to look it over, while you're hitting the record button, out on location. At the end of the day, you turn in files. You've not had a chance to even look at your email for a signed contract. By then, the job is literally done before a contract is signed. It makes me nervous to turn in files before a contract is even agreed upon. 

How do you handle this?

[Marc Wielage]

2 hours ago, Rachel Cameron said:

Those jobs where the call comes in literally the day before: You get a call, agree on some basic terms, day rate, standard stuff, etc...on the phone. That evening, you send a contract right away. The next day, their office collects their email, begins to look it over, while you're hitting the record button, out on location. At the end of the day, you turn in files. You've not had a chance to even look at your email for a signed contract. By then, the job is literally done before a contract is signed. It makes me nervous to turn in files before a contract is even agreed upon. How do you handle this?

I think there's a presumption that the people you work for are going to act in a reasonable manner and are not going to somehow throw a monkey wrench into the situation, like suddenly make you liable for any redos or balking at paying something you were certain they had agreed to. I think you can make an argument that the moment they accepted that contract that you had an implied agreement, even if the document wasn't technically signed. I know that there have been contract law cases where an offer was made and the person accepted but the contract wasn't signed, and the other person wound up walking and got sued for it. (This was the famous Kim Basinger "Boxing Helena" lawsuit, which opened a lot of eyes on how actors' deals worked in Hollywood.)

On 9/17/2015 at 7:25 PM, Rachel Cameron said:

What Jeff said. DP's I've worked for would complain about clauses in some of the larger companies' contracts protecting the recorded content in other galaxies and universes. I was never sure if they were joking or not. 

The standard line is something like:

"Employee hereby irrevocably assigns, licenses and grants to Company, throughout the universe, in perpetuity, all rights, if any, of Employee's recorded material to Employer." 

I wanted to add "Forever and ever, amen," but they never go for that. There's some interesting thoughts on this "throughout the universe" contract line:

http://www.litigationandtrial.com/2009/10/articles/the-law/for-lawyers/dont-make-your-contracts-apply-throughout-the-universe/

http://www.wsj.com/articles/SB125658217507308619

For anybody who has lots of time to burn, there are loads of interesting showbiz-related contracts, waivers, and release forms here:

http://www.filmcontracts.net/

https://www.filmsourcing.com/

http://www.sonnyboo.com/downloads/downloads.htm

https://www.studiobinder.com/