AF7430 Chap.7 Performers, Agents and Managers
Performers, Agents and Managers
Where the abstract rights become clauses somebody signs
The chapter opens on a distinction the industry treats as elementary and students routinely miss. A right lets its holder go ahead and produce a motion picture; an option is the right, though never the duty, to buy that right for a fixed sum by a fixed date.
An option is no more than the choice of whether to take a right up, and it is cheap precisely because it commits nobody.
Two questions follow and a contract has to answer both: what the right is over, whether a novel, a poem, a play, an original script or another film, and what it covers, meaning the picture itself, any sequels, any television series and whatever ancillary rights are named.
Paying a writer, and the clauses that go with each pattern
The services are a list rather than a deliverable, and each has to be named with a time attached: treatment, first draft, revisions of the first draft, second draft, revisions of the second draft, polish.
A flat deal pays one fee for a completed script. A step deal pays by increments with the producer free to terminate after each step, and the writer paid for the steps completed, which is commonly used with a writer who has no track record.
The producer's standard position on rights is a grant of every right in the script, everywhere, for as long as copyright lasts, across every medium that exists now or is invented later, and the course asks the useful question rather than the standard complaint: what can the writer negotiate to keep.
Four asks are conventional, being contingent remuneration, a fee for writing sequels, passive payment on a sequel or remake written by somebody else, and a reversion or turnaround right for the case where the producer buys the script and never makes the film.
Reversion and turnaround are not the same clause
A reversion right is automatic: the licence granted expires by itself after a stated period if the producer has not by then taken stated action, which is why it is also called a recapture.
A turnaround right is not automatic and lets the writer require the producer to re-assign named rights inside a set window for a stated payment. The first needs nothing from either party; the second needs the writer to act and usually to find money.
Drafting one and calling it the other is a real and common error.
The director does not have the final cut
A director has to be artist and businessman in one body, and a company that has put substantial money into a film will not let the director deliver a masterpiece that is a commercial disaster.
The contract says so, designating a named production company executive as having final cutting authority over the picture. Directors are usually engaged on a flat fee, per picture, with the same kinds of contingent remuneration available to a writer, and because the engagement is per picture they move freely between companies and rival franchises.
In television the pattern reverses: writer, director or producer and performers are typically employees of the station on a fixed monthly salary, performers earning an additional bonus based on airtime, and that employment relationship also decides copyright.
Rights in a performance, and who speaks for talent
A performance covers dramatic, musical, recitation, artistic, folklore and variety performances, provided they are live and not yet recorded and are given by individuals; a performer is anyone who acts, sings, declaims, plays in, interprets or otherwise gives the performance.
Rights in a performance stand apart from copyright in the work performed and from copyright in any recording of it, are given to performers and to whoever holds recording rights, and no film or sound recording may be made without consent.
The economic rights are property: reproduction, distribution, making available to the public and rental, transferable and licensable, with assignment ineffective unless in writing signed by the assignor.
A talent agent secures work and takes commission on gross earnings; a manager advises which opportunities to take and may be paid by commission, flat fee or time; and a fiduciary duty arises where one person stands in a relationship of trust towards another, carrying duties of loyalty, care and good faith.
What this chapter covers
- 01
Right against option, and what each one is over and covers
- 02
The six writing steps, and the time that has to attach to each
- 03
Flat deal, step deal and salaried employment
- 04
The all-rights grant, and the four things a writer asks back
- 05
Reversion and turnaround, and why they are not the same clause
- 06
Final cutting authority, and the case that shows it working both ways
- 07
What counts as a performance and who counts as a performer
- 08
The four economic rights, and why clearing the song does not clear the singer
- 09
Agent against manager, and where the fiduciary duty attaches
Three changes to a step deal, in order of priority
- 3Name the first change and say what it protects.
- 3Name the second change and say what it protects.
- 3Name the third change and explain the ordering.
Key terms
- Option
- The right, though never the duty, to buy a right for a fixed sum by a fixed date. It is the choice to exercise a right.
- Step Deal
- A writing engagement paid by increments over the service period, with the producer entitled to terminate after each step and the writer paid for steps completed.
- Reversion Right
- A clause under which the licence granted to a producer expires automatically after a stated period if stated action has not been taken. Also called a recapture.
- Turnaround Right
- A clause letting the writer require the producer to re-assign named rights inside a set window for a stated payment.
- Passive Payment
- Royalties payable to the original writer on a sequel, remake or television series even where that writer does not work on it.
- Final Cutting Authority
- A contractual designation of a named production company executive as the person with the last word on the cut of the picture.
- Performer
- An actor, a singer, a musician, a dancer, or anybody else who acts, sings, declaims, plays in, interprets or otherwise gives the performance.
- Recording Rights
- The rights held by the person entitled to make recordings of a performance, whose consent is required alongside or instead of the performer's.
- Fiduciary Duty
- The duty of care and good faith owed where somebody stands in a relationship of trust towards another, covering loyalty, care and honest dealing.
- Talent Agent
- A marketing intermediary who solicits performances, appearances and engagements for clients, paid by commission on the client's gross earnings.
- Manager
- An adviser who helps talent choose among opportunities to maximise exposure and income, paid by commission, flat fee or time.
- Contingent Remuneration
- Payment depending on a film's performance, which may include net profit participation and proceeds from television and video exploitation.
Performers, Agents and Managers FAQ
What is the difference between a right and an option?
A right in this industry is an entitlement that lets its holder go ahead and produce a motion picture. An option is the right, though never the duty, to buy that right for a fixed sum by a fixed date, which makes it the choice to exercise a right rather than the right itself.
Options are inexpensive precisely because they commit nobody, and a producer who options a novel for eighteen months without addressing the television or sequel rights has bought exactly one thing.
If a producer buys my script and never makes it, can I get it back?
Only if the contract says so. An outright assignment moves the property, there is no implied obligation to exploit it, and nothing recaptures it automatically. The two clauses that answer this are a reversion right, under which the grant expires by itself after a stated period without production, and a turnaround right, under which the writer may require re-assignment inside a set window for a stated payment.
Both cost nothing to negotiate at the start and are unobtainable once the deal is signed.
Does licensing a song clear the recording of it?
No. Rights in a performance stand apart from copyright in the work performed and from copyright in any film or sound recording carrying it. A licence from a composers' body covers the musical work, and no film or sound recording of a performance may be made without the consent of the performer or of whoever holds recording rights.
Each member of a group holds rights of their own, so the band's name on the billing does not absorb the individual rights.
Assessment move
Take the six writing steps and draft a one-line payment and delivery schedule for each, with a date and an amount, then add a single sentence saying what happens if the producer stops after step three. That exercise produces, in fifteen minutes, most of what the contract-review chapter will later ask you to find missing from somebody else's draft, and it fixes the reversion and turnaround distinction by making you choose one.
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