KEY POINTS TO CONSIDER WHEN COMMISSIONING OR OPTIONING A NEW PLAY OR A NEW MUSICAL
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- Barnard Hensley
- 7 years ago
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1 So, you wanna be a Producer?! Section 1.3 (Page 1 of 5) General Comments There is a collective bargaining Agreement, operating from June 1993 between TMA (1) and the Writer's Guild of Great Britain, The Theatre Writer's Union and the Scottish Society of Playwrights (2) which sets out minimum terms for contracts between their respective members (other than English Stage Company, RNT and RSC) for plays in subsidised repertory theatre throughout the UK (but excluding West End of London). These minimum terms may be supplemented or enlarged by agreement between the parties. Reference should be made to the TMA booklet for these minimum terms in relation to subsidised repertory productions outside West End of London. Apart from the above subsidised repertory agreement and agreements relating to the above National Companies, there is no standard form agreement between producer and author, so that such agreements are subject to negotiation in each case. Much will depend on individual circumstances, including the relative bargaining strengths and weaknesses of the parties. Each case is different and the scope for variation is very wide. The following key points relate to "open" contracts of this nature. In the case of a new work which has never been previously presented the producer will be helping to establish the reputation of the work and bring it to life, so as to generate revenue from future exploitation. Therefore, unless the author is a big name and possibly even then, the producer should be able to negotiate a better financial package in relation to subsidiary exploitation and/or continuing financial interest after closure of his/her initial production, than would otherwise be the case. Applicable to Newly Commissioned Works Lump sum advance payable by instalments against delivery of first draft, second draft, final version etc, according to a timetable. Advance to be recoupable (or partially recoupable) from royalties. Any permission needed from other authors to engage new writer? Suggest that since it is a work-for-hire based on other partially completed work, copyright in new material should be assigned outright to producer, in all media in perpetuity without reverter, upon payment of final instalment of the advance. If not assigned, but only optioned or licensed, see separate section on noncommissioned work below. Query whether usual reservation of "music publishing rights" in favour of the writer (applies to stage musicals only). Arguably, if commissioned there should be no reservation. Ensure no obligation on producer to use the new material. Query waiver of writer's moral right to non-derogatory treatment, if producer is to be able to use part of the new work, as distinct from the whole, or to make any changes in it, or mingle it with that of other writers, or have it translated into other languages.
2 So, you wanna be a Producer?! Section 1.3 (Page 2 of 5) Applicable to Option on New Non- Commissioned Work Length of option. Advance payment for option. Is advance to be wholly or partially recoupable from royalties? Is option period extendable by further advances? long? Scope of option: If so for how Any territorial or other geographical restriction on stage rights option e.g. West End, U.K, overseas, fixed venue Any classification restriction on stage rights option all professional? first class only? all live stage, including amateur? If confined to first class, is workshop or try-out permissible? If confined to West End, is a pre-west End tour permissible? Qualifying period: usually 21 consecutive performances (excluding Sundays and public holidays) commencing within option period. Qualifies for: widening scope of stage rights, territorially or otherwise acquiring subsidiary rights, and if so, what (see below) merger of different strands of the work into a single whole so as not to be separately exploitable. Licence or Assignment after qualifying? Which? If assignment, query any geographical or rights limitation? If licence: Query perpetual? Query exclusive? Any reverter of stage rights and if so how does licence lapse e.g. if less than [50] performances p.a. after a specified period following closure of initial production?
3 So, you wanna be a Producer?! Section 1.3 (Page 3 of 5) Applicable to Option on New Non- Commissioned Work Query avoidance of lapse by payment instead? Any reverter of subsidiary rights? If so when? and remember to reserve preexisting contracts. Subsidiary Rights (subject to qualifying): What subsidiaries is producer to have, if any? Merchandising? In theatre only or general? Motion Picture: Cinema TV Video Multimedia As staged only or right to adapt? Cartoon/animation rights? Cast album (in case of stage musical only). Second class stage rights? (Amateur, stock, repertory, concert). Foreign language rights? Right to translate? For how long are subsidiary rights to last? 20 years or perpetual, or as long as stage rights? If subsidiary rights (or stage rights) revert or are reserved, does producer have share in author s or copyright owner s subsequent exploitation and if so what share (20%?) and for how long? Sub-licensing: Permissible generally? Limited to affiliates? Subject or not to approval? Any approval not to be unreasonably withheld? Reserved rights: What rights and/or territories does author wish to reserve for him/herself? In case of a musical, author will invariably want to reserve music publishing rights in individual songs. General reservation of all rights not expressly granted.
4 So, you wanna be a Producer?! Section 1.3 (Page 4 of 5) Hold-Backs: Royalties: Non-release of any reserved stage rights either generally or in a specified territory Non-release of music publishing before producer s cast album Non-release of any reserved motion picture rights Free motion picture synchronisation right? What total percentage of Weekly Box Office Receipts (WBOR) (6% to 8%) for author s copyright? How split between various authors and collaborators, and any new writers? Any royalty pool or pre-recoupment royalty cap to apply, and if so is there to be any deferred claw back (see Section 4.6) Any escalation by reference to recoupment or a multiple of recoupment Where royalties depend on recoupment specify producer s office management fee and royalty in definition of recoupment (usually management fee starts two weeks prior to first rehearsal and ends two weeks after closure) Any other royalty limitations e.g. bad debts, bus and truck company share provision. Subsidiary revenue: How are profit shares (i.e. net revenue) to be split between author and producer relating to various different categories of subsidiary rights? How long sharing to continue? Payment procedures: Royalties in UK within 7 days after end of each week overseas within days after end of each week/month accompanied by copy box office returns.
5 So, you wanna be a Producer?! Section 1.3 (Page 5 of 5) Subsidiary Revenue motion picture within 14 days of receipt otherwise quarterly within 60 days after end of each quarter accompanied by financial statements. Verification by inspection of accounts Recoupment accounts, interim and final production accounts Production accountants Withholding tax provisions. Approval/consultation rights. Billing credits and biogs. Author s attendance rights, accommodation, travel expenses and per diems. Producer to have artistic control. Warranties: Moral Rights: by owner as to title no obscene or defamatory content by producer. Is waiver needed? E.g. if changes are contemplated. This section has been specially prepared for Stage One by D. Michael Rose of Tarlo Lyons, Solicitors. Copyright reserved to D Michael Rose
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