Introduction

The heart of any production is the talent: the writers, directors, producers, actors and musicians who contribute their unique skills and expertise to bring the production to life.

In this article, Geldards Partner Peter Ward looks specifically at writers agreements and on-screen talent agreements, along with some pitfalls to watch out for.

A note on PACT and Equity

The Producer’s Alliance for Cinema and Television (PACT) is the trade association for independent content producers in the UK film and TV industry. Equity, is the trade union for those working in entertainment and the performing arts in the UK.

PACT and Equity negotiate collective agreements on an ongoing basis, which set out the minimum expected terms and conditions for Equity members working with independent production companies. The areas covered include pay, secondary payments (including royalties and residuals), AI, casting and many more.

Where appropriate, talent can be engaged based on PACT standard form agreements, which will reflect the terms agreed between PACT and Equity. A benefit of this approach is the streamlining of the negotiating process, as there is a clear framework around matters such as expected compensation and the talent’s rights and obligations. However, bear in mind that the standard forms may not always be appropriate, particularly when the terms offered to featured cast exceed negotiated minimum terms.

Like any template, the PACT templates should not be followed slavishly, and any nuances of the relationship should be clearly reflected and documented in the relevant contract.

Writer Agreements

Whether a production is live-action or animated, it will need a script. To achieve this, a writer or writers will be engaged. Each writer agreement will have its own bespoke elements, however there are several considerations that will be common to many of them. Let’s look at some of these.

Staff writer or head writer

In the most straightforward scenarios, the writer is engaged to write a script for a feature-length production or perhaps a certain number of scripts for episodes of an episodic production. For some reason, when it comes to feature films “screenplays” and “scripts” are interchangeable, but television scripts are always called scripts.

On an episodic production, there may be a team of writers all working under the direction of a head writer. Members of the writing team will be tasked with writing a certain number of episode scripts, either individually or as part of the team. The head writer will, however, have greater responsibilities and usually command a higher fee as a result.

The head writer’s contract should set out the additional responsibilities in detail. For example, they may be required to produce a so-called “writer’s bible”, mapping out the story world, themes, character breakdowns and story spring ideas.

The head writer will also oversee the rest of the team to ensure consistency of tone, voice and story arc.

Timing and number of drafts

Writer output will need to meet production timelines. Although creativity shouldn’t be rushed, writers (like everyone else) need the pressure of a deadline to produce their best. As the saying goes, the two necessities in doing a great and important work are a definite plan and limited time.

Writer agreements should set out the number of drafts required and a process for how suggestions or “notes” are fed back to them. Few things annoy a writer more (apart from not being paid) than being drip-fed piecemeal and contradictory notes on their work. Feedback is crucial, but it has to be constructive. A good contract will set out the framework of how feedback is to be given, so that it reaches the writer clearly and coherently.

Fee and Payment schedule

The writer should be paid to start the work, with subsequent instalments of the fee falling due on delivery milestones – perhaps on delivery of the first and then subsequent drafts. Tempting as it may be from a cash flow perspective, a producer should not try to heavily back-load the writer’s fee. Building goodwill with the writer is important and paying them fairly and as drafting progresses goes a long way to achieving that.

Credit

A writer will want to be properly credited for their work, not just for the benefit of their ego and CV but also because the type of credit they receive can impact their entitlement to so-called “residual payments” from the production. Care should be taken when attributing writing credits. For example, “written by”, “created by” and “developed by” all mean different things and depending on which one is attributed, may impact the amount of money that ultimately finds its way into the writer’s pocket.

IP and remedies for breach

The contract should provide that IP in the product of the writer’s services is clearly and irrevocably assigned to the production company as soon as it is created. Sometimes writers (or their agents) attempt to make assignments of the created IP conditional on receipt of payment. While there is logic behind that strategy, from a producer’s perspective it should be resisted. The last thing a producer or their financiers want is a potential dispute over the ownership of IP which forms an intrinsic part of their production. If there is a dispute, the writer’s remedy should be for contractual damages. They should not be afforded the opportunity to withhold IP as negotiating leverage.

Flowing from this, contractual provisions should be included where the writer waives their rights to the remedies of recission, reversion, injunction or other equitable relief if there is a breach of the agreement.

If a writer was, for whatever reason, to be granted injunctive relief against a producer using the output of their services, the doomsday scenario of the production being unable to air could become a reality. This would have serious knock-on contractual repercussions for the production company and, at the very least, hard questions would be asked of the production company’s lawyers. It is therefore a well-trodden path in writer’s agreements that recourse to equitable remedies is excluded. From a producer’s perspective, this should not be a matter for negotiation.

Option for additional services/right of first refusal

If a writer is engaged at an early stage in a production’s development, to write a pilot script say, they may be prepared to accept a reduced fee in return for the opportunity to write for the production if and when it is green-lit.

If this option is on the table, the writer may push for it to apply to all seasons of the production, if it is episodic. A good lawyer can help draft the appropriate protections so that both the writer and producer get to a place where they are comfortable to move ahead on that basis.

On-screen talent

In this article, we’ll use “Talent” to mean the actors, notwithstanding that of course there is both on and off-screen talent in any production. We’ll look at off-screen talent in a separate article.

The terms of Talent agreements will vary depending on the type of production in question (feature vs. documentary vs. live action vs. animation and so on) and whether the Talent is to be part of the featured cast or a supporting actor. We won’t attempt to cover the full gamut of issues that could arise in contractual negotiations between Talent and production companies, however a few notable points are highlighted below.

Remuneration

Prominent or experienced actors will often seek to negotiate contingent compensation in addition to their fee. This is normally expressed as a percentage of the production’s net profits, with the definition of net profits being set out in detail. The term “net profits” is likely to crop up in various agreements relevant to the production and it is one of the jobs of the lawyers to make sure the definition is consistent from agreement to agreement.

If a production is particularly close to an actor’s heart and they really want it to see the light of day, they may be prepared to significantly lower their base fee in return for a larger “back end” share of net profits, particularly if they already have a bob or two. For example, George Clooney has stated on record that he took a reduced upfront fee of $125k for “O Brother Where Art Thou” and indeed gave back half of his fee on “Three Kings”, on the basis those films may not have been made without the funds that were consequently freed up. Clearly, not everyone will be in a financial position to take a similar gamble on a production’s success.

Term

The contract should set out the term of the engagement. There should be a period of time where the Talent is committed to the production on an exclusive or at least a “first call” basis, although this shouldn’t be for an indefinite or overly long time period.

If the Talent is exclusively contracted to the production, they will not be able to work on other projects during the relevant timeframe. However, if they are contracted on a “first call” basis, they will need to give the production their priority in almost all professional circumstances, but may be able to take on other work with doesn’t interfere with those obligations. Talent’s preference will often be for first-call availability rather than exclusivity, and a premium may be required where there is to be exclusivity.

Assignment of copyright

In common with other contributors to the production, Talent will be required to assign the copyright in their performances to the production company and to waive their moral rights in the work. There should be a contractual acknowledgement that the producer may alter, cut, amend and generally deal with the output of the Talent’s performance as they see fit.

Nudity clauses

If Talent is to be required to take part in scenes where they are partially or fully nude or where sex or intimacy is simulated, they should be informed of the nature of those scene(s) prior to contract signature. The contract itself should then acknowledge that the Talent has been made aware of the nature of the relevant scenes. The clause should then detail what is expected of the Talent – for example, the degree of nudity, all the way down to a description of the body part(s) which may or may not be shown.

Where relevant, the contract should also stipulate the extent to which the Talent may approve or disapprove body doubles, where used. Nudity on set is subject to strict union guidelines and any nudity clauses in the Talent contract should acknowledge the guidelines and confirm, on the part of both producer and Talent, that they will be adhered to. This includes matters such as having a closed set, the engagement of intimacy co-ordinators and rehearsal protocols.

Publicity/Endorsement

The Talent may be required to make themselves available for production publicity purposes (interviews, appearances at premieres and other marketing activities) and the contract should reflect those requirements. The Talent will not want to overcommit themselves unless the fee justifies it.

The contract should make clear whether the Talent’s name or image may be used to endorse any commercial product other than the production. If the producer wants the ability to use recorded dialogue in items such as video games and merchandising, this should also be specifically set out so that there is no ambiguity.

Nationality

Some productions require a certain threshold to be met in terms of the nationality of the Talent involved. More often than not, this is in order to benefit from production incentives such as tax credits. Where this is required, the nationality of the Talent should be set out in the contract and the Talent is asked to warrant that they will remain of the same nationality during the term of the agreement.

Now we’ve looked at some of the high-level issues relevant to engaging creative talent, in our follow-up articles we will look at some of the key aspects of contracting other contributors to the production, such as directors, individual producers and musicians.

If you require any assistance in drafting agreements for productions, contact Peter Ward of the Geldards Media and Entertainment Law team