Personal Service Contracts: Written By New York Entertainment Attorney And Film And Music Lawyer John J. Tormey III, Esq.

http://www.tormey.org/personal.htm

Law Office of John J. Tormey III, Esq. – Entertainment Lawyer, Entertainment Attorney

John J. Tormey III, PLLC
1324 Lexington Avenue, PMB 188
New York, NY  10128  USA
(212) 410-4142 (phone)
(212) 410-2380 (fax)
brightline@att.net

http://www.tormey.org

Personal Service Contracts: Written By New York Entertainment Attorney And Film And Music Lawyer John J. Tormey III, Esq.

© John J. Tormey III, PLLC. All Rights Reserved.

This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

1. What Items Should Appear In A Personal Services Contract?

An entertainment attorney will opine that personal services agreements in New York, California or elsewhere can be fairly complex in regard to the issues that they present - yes, even if the total compensation payable under the personal service contract is not too large. It would be beyond the scope of this article to set forth an exhaustive list of issues for the entertainment attorney to spot in any New York or other personal services contract. But some of the key issues for talent, in a personal services agreement in the entertainment world, are considered to be:

A. Compensation: The first talent-side entertainment attorney contract concern.

How much will one be paid, and how will one be paid, under the personal services contract?

B. Credit. The second talent-side entertainment attorney contract concern.

What credit, if any, will one get for one’s work, and in what manner, pursuant to the personal services agreement?

C. Term. The third talent-side entertainment attorney contract concern.

This is a critical point: For how long will one be required to render services under the personal services contract?

D. Territory. The fourth talent-side entertainment attorney contract concern.

In what country/city/state/territory is one required to render services pursuant to the personal services agreement?

E. Media. The fifth talent-side entertainment attorney contract concern.

In what specific media can, and can’t, one’s work product be used according to the personal services contract?

F. (Non)Exclusivity. The sixth talent-side entertainment attorney contract concern.

Is the artist exclusive to the hiring party; or alternatively, can the artist work elsewhere and/or in other ways during the Term of the personal services agreement?

G. Worker Status. The seventh talent-side entertainment attorney contract concern.

Is the worker an employee, or an independent contractor, under the personal services contract (choose only one answer!)

There are actually quite a number of other issues for an entertainment attorney, or the intended signatory client, to consider, in the context of personal services contracts, in addition. The above list will certainly start the contractual dialogue or respond to the contractual dialogue of any prospective hiring party, however.

2. What Should Be Avoided In A Personal Services Contract?

Again, it would be beyond the scope of this article to set forth an exhaustive list of all contractual traps for the entertainment attorney to avoid in personal service agreements, as a matter of New York law or otherwise. Indeed, there are probably at least as many contractual traps, as there are New York and Los Angeles in-house entertainment lawyers working at these hiring corporations! (and I say this with all due respect to my friends who work in-house, of course). But some of the more colossal mistakes that an artist could make in a personal service contract, typically without first consulting an entertainment attorney, might be as follows:

A. Back-End: Taking the entirety of one’s compensation under the personal services agreement, as contingent or “back-end”. This Hollywood hustle is just as familiar a phenomenon in New York City’s TriBeCa and elsewhere, as well. The fact of the matter is, if the artist is a professional, or if the artist otherwise values his or her own skills and time, then the artist’s work product is valuable and should be recognized as such under the contract. The “buyer” of services and work product under the personal services contract should be required to put at least some earnest money on the barrel, first – whether that barrel be located in New York or anywhere else. One of the entertainment attorney’s functions should be to make this happen. And, the artist should not be expected to commence services under the personal services agreement until those numbers first show up in the artist’s bank account, whatever the numbers are negotiated to be, by and between the entertainment attorneys on either side of the contract.

B. Vagueness: Leaving the Term, Territory, Media and Exclusivity provisions vague in the personal services contract. Artists have found their careers paralyzed for huge amounts of time, due to contractual mistakes like this. No non-lawyer should try to write or edit these personal services agreement clauses on his or her own, and the drafter and/or editor of the contract really should be an entertainment attorney solely representing the artist. No one should blindly sign on to these contractual clauses as offered, particularly if they are vague. (In other words, don’t try this at home. Get professional help from an entertainment attorney, period). For example, if the artist only intended to bind himself or herself to a manager exclusively for New York work alone, imagine her surprise when the manager seeks a commission for a Los Angeles gig that the artist booked on the artist’s own.

C. Forever: Failing to limit the Term of the personal services contract to a reasonable and precise period of time. “Perpetuity”, if ever agreed to, is guaranteed to become one’s own private Hell – sort of like a New York City subway tunnel at 3:00 AM, but worse. The contractual Hell would be forever, and after all, the entertainment attorney may not live to see the artist through a period of time that long. Leaving the Term quantitatively vague in a personal services agreement is just about as bad a mistake as calling it “Perpetuity”, and an entertainment lawyer should prevent an artist from making this contractual mistake. Life is too short and valuable to make open-ended and blank-check commitments to people – in personal services contracts, or otherwise.

3. How Can A New York Entertainment Attorney Tell If A Personal Services Contract Is One-Sided In The Hiring Party’s Favor?

The answer is, if the hiring party furnished the personal services agreement to an artist, then the contract is one-sided in the hiring party’s favor! That was a rhetorical question. And the ability to answer it is not really limited to New York entertainment lawyers alone.

The hiring party is under no obligation to protect the artist’s interests in a legal document, personal services contract or otherwise. If upon receipt of the intended contractual document, you snooze, then you lose. One’s entertainment attorney is one’s hope for re-calibrating the scales of justice evenly, in this type of proposed contract and in this type of fact-pattern. The New York courts might even look to whether both sides of the contract were represented by counsel at the time of signing, before upholding the contract or any of its specific clauses. Retaining entertainment lawyer counsel could have multiple and long-term benefits throughout the life of the contract.

And many entertainment lawyers can speak to this phenomenon from their own “personal” experience. Many of us entertainment attorneys, in New York and elsewhere, have drafted, edited, negotiated, and reviewed hundreds or even thousands of contracts. Many of these were personal service agreements. If polled, few New York or other entertainment lawyers can remember even one personal service contract first offered by a hiring party to any talent clients, that was ever fair.

There is a reason why many New York and other entertainment attorneys and others in the entertainment industry refer to the first-offered personal service agreement form, as the (euphemism) “F.U. Form”. Once an artist retains entertainment lawyer counsel to represent the artist on the personal services contract, one of that entertainment attorney’s first functions is:

A. To get the hiring party to cough up a real personal services contract form in lieu of the “F.U. Form”; if not

B. Take over the drafting of the personal services agreement, entirely.

And yes, signing any entertainment industry proposed personal services agreement, either: (i) on-the-spot, or (ii) in the version exactly as first offered for signature with no contractual edits made, without an entertainment attorney advising you, often turns out to be a mistake.

Click the “Articles” button at:

http://www.tormey.org/art.htm
to return to the main Articles page.

My New York entertainment law practice includes the drafting, editing, negotiation, and closure of personal service agreements as well as all other contracts and entertainment transactional and advisory matters in the fields of film, music, television, publishing, Internet, and all other media and art forms. If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC
1324 Lexington Avenue, PMB 188
New York, NY  10128  USA
(212) 410-4142 (phone)
(212) 410-2380 (fax)
brightline@att.net
http://www.tormey.org

 

Page:
Personal Service Contracts

Title Metatag:

personal services,entertainment attorney,contracts,New York law

Meta Description:

personal services,entertainment attorney,contracts,entertainment lawyer,clause,music,film,New York,television,publishing

Keywords:

compensation,contracts,credit,entertainment attorney,entertainment counsel,entertainment law,entertainment lawyer,entertainment litigation,exclusivity,film law,law practice,legal services,music law,

New York lawyer, personal services, publishing law, television law, entertainment attorney, entertainment lawyer, personal service contracts, personal services, entertainment attorney, contracts, New York law, contracts, personal services, clause, music, film, New York, television, publishing, compensation, contracts, credit, entertainment attorney, entertainment counsel, entertainment law, entertainment lawyer, entertainment litigation, exclusivity, film law, law practice, legal services, music law, New York lawyer, personal services, publishing law, television law

ATTORNEY ADVERTISEMENT

http://www.tormey.org/personal.htm

The Need For An Entertainment Lawyer In Film Production: Written By New York Entertainment Attorney And Film Lawyer John J. Tormey III, Esq.

http://www.tormey.org/film.htm

Law Office of John J. Tormey III, Esq. – Entertainment Lawyer, Entertainment Attorney

John J. Tormey III, PLLC

1324 Lexington Avenue, PMB 188

New York, NY  10128  USA

(212) 410-4142 (phone)

(212) 410-2380 (fax)

brightline@att.net

http://www.tormey.org/

The Need For An Entertainment Lawyer In Film Production: Written By New York Entertainment Attorney And Film Lawyer John J. Tormey III, Esq.

© John J. Tormey III, PLLC. All Rights Reserved.

This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

Does the film producer really need a film lawyer or entertainment attorney as a matter of professional motion picture practice? An entertainment lawyer’s own bias and my stacking of the question notwithstanding, which might naturally indicate a “yes” answer 100% of the time - the forthright answer is, “it depends”. A number of motion picture producers these days are themselves film lawyers, entertainment attorneys, or other types of lawyers, and so, often can take care of themselves. But the filmed motion picture producers to worry about, are the ones who act as if they are entertainment lawyers - but without a license or entertainment attorney legal experience to back it up. Filmmaking and motion picture practice comprise an industry wherein these days, unfortunately, “bluff” and “bluster” sometimes serve as substitutes for actual knowledge and experience. But “bluffed” documents and motion picture production procedures will never escape the trained eye of entertainment attorneys working for the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, I suppose, the job function of film production counsel and entertainment lawyer is still secure.

I also suppose that there will always be a few lucky filmmakers who, throughout the entire motion picture production process, fly under the proverbial radar without entertainment attorney accompaniment. They will seemingly avoid pitfalls and liabilities like flying bats are reputed to avoid people’s hair. By way of analogy, one of my best friends hasn’t had any health insurance for years, and he is still in good shape and economically afloat - this week, anyway. Taken in the aggregate, some people will always be luckier than others, and some people will always be more inclined than others to roll the dice.

But it is all too simplistic and pedestrian to tell oneself that “I’ll avoid the need for filmed motion picture lawyers if I simply stay out of trouble and be careful”. An entertainment lawyer, especially in the realm of film (or other) production, can be a real constructive asset to a motion picture producer, as well as the film producer’s personally-selected inoculation against potential liabilities. If the producer’s motion picture entertainment attorney has been through the process of film production previously, then that entertainment lawyer has already learned many of the harsh lessons regularly dished out by the commercial world and the film business.

The film and entertainment lawyer can therefore spare the motion picture producer many of those pitfalls. How? By clear thinking, careful planning, and - this is the absolute key - skilled, thoughtful and complete documentation of all film production and related motion picture activity. The film lawyer should not be thought of as simply the cowboy or cowgirl wearing the proverbial “black hat”. Sure, the entertainment lawyer may sometimes be the one who says “no”. But the filmed motion picture entertainment attorney can be a positive force in the production as well.

The film lawyer can, in the course of legal representation, assist the motion picture producer as an effective business consultant, too. If that entertainment lawyer has been involved with scores of film productions, then the motion picture producer who hires that film lawyer entertainment attorney benefits from that very cache of experience. Yes, it sometimes may be difficult to stretch the film budget to allow for motion picture counsel, but professional filmmakers tend to view the legal cost expenditure to be a fixed, predictable, and necessary one - akin to the fixed obligation of rent for the motion picture production office, or the cost of film for the cameras. While some film and entertainment lawyers may price themselves out of the price range of the average independent film producer, other entertainment attorneys do not.

Enough generalities. For what specific tasks must a motion picture producer typically retain a film lawyer and entertainment attorney?:

1. INCORPORATION, OR FORMATION OF AN “LLC”: To paraphrase Michael Douglas’s Gordon Gekko character in the motion picture “Wall Street” when speaking to Bud Fox while on the morning beach on the oversized mobile phone, this entity-formation issue usually constitutes the entertainment attorney’s “wake-up call” to the film producer, telling the film producer that it is time. If the motion picture producer doesn’t properly create, file, and maintain a corporate or other appropriate entity through which to conduct business, and if the film producer doesn’t thereafter make every effort to keep that entity bullet-proof, says the entertainment lawyer, then the film producer is potentially shooting himself or herself in the foot. Without the shield against liability that an entity can provide, the entertainment attorney opines, the motion picture producer’s personal assets (like house, car, bank account) are at risk and, in a worst-case scenario, could ultimately be seized to satisfy the debts and liabilities of the film producer’s business. In other words:

Patient: “Doctor, it hurts my head when I do that”.

Doctor: “So? Don’t do that”.

Like it or not, the film lawyer entertainment attorney continues, “Film is a speculative business, and the statistical majority of motion pictures can fail economically - even at the San Fernando Valley film studio level. It is insane to run a film business or any other form of business out of one’s own personal bank account”. Besides, it looks unprofessional, a real concern if the motion picture producer wants to attract talent, bankers, and distributors at any point in the future.

The choices of where and how to file an entity are often prompted by entertainment lawyers but then driven by situation-specific variables, including tax concerns relating to the film or motion picture company sometimes. The film producer should let a motion picture lawyer or entertainment attorney do it and do it correctly. Entity-creation is affordable. Good lawyers don’t look at incorporating a client as a profit-center anyway, because of the obvious potential for new business that an entity-creation brings. While the film producer should be aware that under U.S. law a client can fire his/her lawyer at any time at all, many entertainment lawyers who do the motion picture entity-creation work get asked to do further work for that same client - especially if the entertainment attorney bills the first job reasonably.

I wouldn’t recommend self-incorporation by a non-lawyer - any more than I would tell a film producer-client what actors to hire in a motion picture - or any more than I would tell a D.P.-client what lens to use on a specific film shot. As will be true on a film production set, everybody has their own job to do. And I believe that as soon as the producer lets a competent motion picture lawyer or entertainment lawyer do his or her job, things will start to gel for the film production in ways that couldn’t even be originally foreseen by the motion picture producer.

2. SOLICITING INVESTMENT: This issue also often constitutes a wake-up call of sorts. Let’s say that the film producer wants to make a motion picture with other people’s money. (No, not an unusual scenario). The film producer will likely start soliciting funds for the movie from so-called “passive” investors in any number of possible ways, and may actually start collecting some monies as a result. Sometimes this occurs prior to the entertainment lawyer hearing about it post facto from his or her client.

If the film producer is not a lawyer, then the motion picture producer should not even think of “trying this at home”. Like it or not, the entertainment lawyer opines, the film producer will thereby be selling securities to people. If the motion picture producer promises investors some pie-in-the-sky results in the context of this inherently speculative business called film, and then collects money on the basis of that representation, believe me, the film producer will have even more grave problems than conscience to deal with. Securities compliance work is among the most difficult of matters faced by an entertainment attorney.

As both entertainment lawyers and securities lawyers will opine, botching a solicitation for film (or any other) investment can have severe and federally-mandated consequences. No matter how great the film script is, it’s never worth monetary fines and jail time - not to mention the veritable unspooling of the unfinished motion picture if and when the producer gets nailed. All the while, it is shocking to see how many ersatz film producers in the real world try to float their own “investment prospectus”, complete with boastful anticipated multipliers of the box office figures of the famed motion pictures “E.T.” and “Jurassic Park” combined. They draft these monstrosities with their own sheer creativity and imagination, but usually with no entertainment or film lawyer or other legal counsel. I’m sure that some of these motion picture producers think of themselves as “visionaries” while writing the prospectus. Entertainment attorneys and the rest of the bar, and bench, may tend to think of them, instead, as prospective ‘Defendants’.

Enough said.

3. DEALING WITH THE GUILDS: Let’s assume that the film producer has decided, even without entertainment attorney guidance yet, that the motion picture production entity will need to be a signatory to collective bargaining agreements of unions such as Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This is a subject matter area that some film producers can handle themselves, particularly motion picture producers with experience. But if the film producer can afford it, the producer should consult with a film lawyer or entertainment lawyer prior to making even any initial contact with the guilds. The motion picture’s producer should certainly consult with an entertainment attorney or film lawyer prior to issuing any writings to the guilds, or signing any of their documents. Failure to plan out these guild issues with film or entertainment attorney counsel ahead of time, could lead to problems and expenses that sometimes make it cost-prohibitive to thereafter continue with the motion picture’s further production.

4. CONTRACTUAL AFFAIRS GENERALLY: A film production’s agreements should all be in writing, and not saved until the last minute, as any entertainment attorney will observe. It will be more expensive to bring film counsel or a motion picture entertainment lawyer in, late in the day - sort of like booking an airline flight a few days before the planned travel. A film producer should remember that a plaintiff suing for breach of a bungled contract might not only seek money for damages, but could also seek the equitable relief of an injunction (translation: “Judge, stop this production... stop this motion picture… stop this film… Cut!”).

A film producer does not want to suffer a back claim for talent compensation, or a disgruntled location-landlord, or state child labor authorities - threatening to enjoin or shut the motion picture production down for reasons that could have been easily avoided by careful planning, drafting, research, and communication with one’s film lawyer or entertainment lawyer. The movie production’s agreements should be drafted with care by the entertainment attorney, and should be customized to encompass the special characteristics of the motion picture production.

As an entertainment lawyer, I have seen non-lawyer film producers try to do their own legal drafting for their own motion pictures. As mentioned above, some few are lucky, and remain under the proverbial radar. But consider this: if the film producer sells or options the project, one of the first things that the film distributor or film buyer (or its own film and entertainment attorney counsel) will want to see, is the “chain of title” and development and production file, complete with all signed agreements. The motion picture production’s insurance carrier may also want to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents must be written so as to survive the audience.

Therefore, for a film producer to try to “fake it” oneself is simply to put many problems off for another day, as well as create an air of non-attorney amateurism to the motion picture production file. It will be less expensive for the film producer to attack all of these issues earlier as opposed to later, through use of a film lawyer or entertainment attorney. And the likelihood is that any self-respecting film attorney and entertainment lawyer is going to have to re-draft substantial parts (if not all) of the producer’s self-drafted motion picture production file, once he or she sees what the non-lawyer film producer has done to it on his or her own - and that translates into unfortunate and wasted expense. I would no sooner want my chiropractor to draft and negotiate his own filmed motion picture contracts, than I would put myself on his table and try to crunch through my own backbone adjustments. Furthermore, I wouldn’t do half of the chiropractic adjustment myself, and then call the chiropractor into the examining room to finish what I had started. (I use the chiropractic motif only to spare you the cliché old saw of “performing surgery on oneself”).

There are many other reasons for retaining a film lawyer and entertainment attorney for motion picture work, and space won’t allow all of them. But the above-listed ones are the big ones.

Click the “Articles” button at:

http://www.tormey.org/art.htm

to return to the main Articles page.

My film law practice includes rights, union, financing, exhibition, distribution, production counsel, and all other transactional and advisory matters as they arise in motion pictures and in the fields of music, television, and entertainment generally. If you have questions about legal issues which affect your career, and require representation, please contact me:

Law Office of John J. Tormey III, Esq.

John J. Tormey III, PLLC

1324 Lexington Avenue, PMB 188

New York, NY  10128  USA

(212) 410-4142 (phone)

(212) 410-2380 (fax)

brightline@att.net

http://www.tormey.org/

Page:

The Need For A Lawyer In Film Production

Title Metatag:

film,entertainment lawyer,motion picture,entertainment attorney

Meta Description:

motion picture,entertainment attorney,film,entertainment lawyer,television,New York,production counsel,union,contracts

Keywords:

actors,contracts,DGA,distribution agreement,entertainment attorney,entertainment lawyer,film,film acquisition,film festivals,film lawyer,film production,New York lawyer,production counsel,SAG,

television lawyer, unions, WGA, entertainment attorney, entertainment lawyer, need, lawyer, film production, film, entertainment lawyer, motion picture, entertainment attorney, motion picture, entertainment attorney, film, entertainment lawyer, television, New York, production counsel, union, contracts, actors, contracts, DGA, distribution agreement, film, film acquisition, film festivals, film lawyer, film production, New York lawyer, production, counsel, SAG, television lawyer, unions, WGA

ATTORNEY ADVERTISEMENT

http://www.tormey.org/film.htm