*(c) 2000, Law Office of Barry Oliver Chase, P.A.
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By Barry Oliver Chase, Esq.
Lawyers who represent successful clients in the entertainment industry will, sooner rather than later, be called upon to draft or edit agreements regarding the services of those clients. Examples include agreements for an on-air personality to appear in a TV show, agreements for a musician to record songs for a record album, and agreements for a celebrity to endorse someone else's products or services. While the particulars of these agreements may vary widely, they raise certain common issues, and it is these issues-in-common which are the subject of this article.
The first and foremost issue has nothing to do with how good the lawyer is; it has a lot more to do with how in-demand the client is. We usually call this element "leverage." Leverage means nothing more than whether the client/personality is being hungrily sought after by the other party (the "suitor", let's call it) or, on the other hand, is sitting silently by the telephone most of the day waiting for someone to call. Put otherwise, who wants whom more in the particular scenario? If the client is really in demand, it is relatively easy for his or her lawyer to look like a genius in negotiating the "deal." Conversely, if the client is barely making an impression as an in-demand personality, there is only so much the negotiating lawyer can do to improve upon the typical "take it or leave it" deal terms in the suitor's first draft. As a concrete example, you can imagine how nice it is to hear that my client has two - or even three - suitors simultaneously seeking his/her services for the same time-period. With apologies to my fellow entertainment lawyers for blowing their cover, it is this element of leverage which is, far and away, the key to success or failure in negotiating an advantageous deal for the client.
Hot on the heels of, and often related to, the "leverage" calculation is the issue of whose lawyer should undertake the first draft. This question answers itself if the suitor is a big outfit with all kinds of form agreements (like a record label). On the other hand, if a first-time national TV producer wants one of my clients to put his or her series on the map by starring in it, it may be better for our side to frame the playing field on which the subsequent negotiations are going to occur. Also involved here, of course, is the factor that the drafting process is relatively time-consuming (i.e., it costs a lot of lawyer-hours at God-knows-what per hour) compared to the editing process. Also coming into play is that it may be in the client's interest to let the suitor have the first crack at drafting to give our side a measure of how sophisticated and well-represented the other side may be.
Now, once we have the parties and their relative leverage and resources in hand, it is obviously necessary to determine what kind of agreement we are negotiating: Is it, for example, an agreement for (1) the client's active services; (2) his or her endorsement of a product or service; and/or (3) a mere license of his or her "name and personality"? It may have elements of all three. But no matter what specific kind of agreement it is, there is one cardinal rule that any good entertainment lawyer should always follow:
ALWAYS SLICE UP (AND, CREATIVELY, MAKE UP) THE MAXIMUM TOTAL OF VALUABLE RIGHTS TO BE ASSOCIATED WITH THE CLIENT; AND LICENSE ONLY THOSE WHICH ARE NEEDED TO MAKE THE PARTICULAR DEAL.
Everything else, you save for another day. For example, let's say that the client, like many of my clients, is fortunate enough to be fluent and fun to listen to in both English and Spanish. If the TV producer/record label/consumer brand that wants to associate with the client really onl
