You get the call that you have been waiting for; someone is interested in producing your script!
Before you know it, you are looking at a multi-page production agreement, and being asked to sign on the dotted line. Even if you are lucky enough to have an agent or an attorney on your team, it is critical that you read the agreement and understand its terms.
This article will review the six most basic terms in a production agreement. Having a working knowledge of these terms will allow you to more quickly assess the deal and the producer, empowering you to make an informed decision about what's best for you and for your work.
Grant of Rights
Among the first paragraphs of a production agreement is the “grant of rights” clause. This clause outlines basic license terms including (a) what rights the producer will acquire, (b) the beginning and end date of the grant, (c) the location of the performances, and (d) the level of production. Consider the following model language:
"The Author grants to the Producer, subject to the terms and conditions hereof, the right to produce and present the Play on the live stage at Theatre XYZ, beginning on January 1, 2020 (“Production Date”) and closing January 12, 2020 (“Closing Date”)."
Here we learn that the producer wants to produce and present a live stage production of the work. We know exactly when the producer intends to present the play, and by naming the theatre, we learn the level of production and what to expect.
Sometimes, things are less clear. For example, the producer may not have secured a venue or may not know exactly when the performances will be. In such instances, the grant of rights clause would aim to be as specific as possible given the variables. For example, a producer might request a one-year option to present the play at an off-Broadway theatre in NYC. [See Richard Garmise, “Future Options,” The Dramatists Guild Quarterly (September 1993).]
Another aspect of the grant of rights section is the mention of a “production date.” The production date is critical to our next key clause: Termination.
Termination
The termination clause of an agreement often goes unnoticed until things go wrong. However, the termination clause is arguably among the most important clauses of any agreement because it provides a defined way out of a deal. Termination within a production agreement often occurs when there has been no production by the production date. A typical termination clause might read:
"If there is no production by the Production Date, the Producer’s rights to produce and present the Play pursuant to this Agreement shall automatically terminate and all rights to and in connection with the Play granted by the Author to the Producer shall automatically and without notice to the Producer revert to the Author."
The termination clause is an important protection for the author. It prevents a producer from keeping an author’s work off the market for an unreasonable amount of time without producing the play.
Reservation of Rights
Although the termination and grant of rights clauses concern what the producer has the right to do, it is equally important to note what the producer does not have the right to do. Specifically, the author needs to assert their ownership and make clear that no other rights are being conveyed to the producer except for the specific rights specified in the agreement.
For example:
"The Author is the sole owner of the copyright in the Play, and all rights in the Play not expressly granted to the Producer in this Agreement are reserved to the Author for the Author’s sole disposition and use."
This clause puts the producer on notice that the author owns a bundle of rights and may exercise them at will. Accordingly, within the reservation of rights section, the producer may ask for certain restrictions to be placed on the author’s rights. For instance, the producer may request “exclusive rights to produce the script,” thus ensuring that no other producer can produce the script during the term of the agreement. The producer may also ask for a “holdback” of performances in a certain geographic region or licensing the work in other media. [See Ralph Sevush, “Development Hell: The High Cost of New Play Development,” The Dramatist (January/February 2011).]
Royalties
One of the more critical aspects of a production agreement is the royalty section. The royalty section specifies how the author will get paid, when the author will get paid, and how the payment will be calculated. This section may also identify extensions to the term of the agreement along with the payments associated with those extensions.
As for what to charge, most productions pay a percentage of gross in the form of an “advance against a royalty.” However, there are other forms of payment, such as a per-performance fee, a flat fee, and a royalty pool. Regardless of how one may decide to calculate royalties, all production agreements must address royalties. Even waived or deferred royalties should be noted within the agreement. [See, David Faux, “Moral Rights, Critical Wrongs, Billings and Approvals,” The Dramatist, (March/April 2019).]
Authorial Approvals
Together with the royalty section, the authorial approval clauses are of prime importance.
The three basic authorial rights are:
(1) the right to be present;
(2) script approval;
(3) artistic approval.
The “right to be present” clause states that the “Author shall have the right to attend all casting sessions and rehearsals, as well as all previews and the Official Opening of the Play.” There are two points to keep in mind with regard to the “right to be present.” First, the right to attend is optional. The author is not required to attend casting sessions, rehearsals or performances. Second, it is incumbent on the author to determine with the producer the best way to contribute to the process while in attendance. Attendance does not necessarily mean active participation.
“Script approval” protects the author’s work from being altered without permission. It also ensures that any changes that are made to the script with the author’s approval are owned by the author. The Dramatists Guild includes the following model script approval language in all of its contracts:
"The Producer, recognizing that the Play is the exclusive artistic creation of the Author, agrees that they will not make or permit to be made any addition, omission, and/or alteration to the Play, including without limitation dialogue and stage directions, without the prior written consent of the Author. Any change of any kind whatsoever in the manuscript, title, stage business, or performance of the Play, made by Producer or any third party and which is acceptable to the Author, shall be the property of the Author, free and clear of all license and encumbrances, and the Author shall not be obligated to make any payments to any person who makes or suggests any changes in the Play."
A few key phrases in this paragraph deserve mention. First, the word “prior” ensures that approval isn’t sought after the show closes and the damage is done. Second, the word “written” ensures that acceptance or denial is clear and creates a paper trail should any issue arise. Third, “title” and “stage direction” are mentioned along with “text.” They are equally the words of the author and need to be protected.
Lastly is “creative approval.” A typical “creative approval clause” provides that the “cast, director, and designers, including all replacements thereof and understudies therefor, shall be subject to the mutual approval of the Author and the Producer.” This clause ensures that the author has a say as to who is involved in a production. Creative approval allows authors to seek out creatives who have a vision that is in line with their own.
The right to be present, creative approval, and script approval are industry standard terms. They will not be questioned by a seasoned producer. However, it is critical to understand that none of these rights are guaranteed unless they are written into your agreement. Copyright law protects authorship, but it does not guarantee the authorial rights as outlined above.
Billing
All production agreements should have a billing clause. The billing clause ensures that the author will be credited as the author of the work. The standard billing clause ensures that the author’s name will appear directly underneath the title of the play on a line by itself, wherever the title is used. Standard billing clauses also dictate the size of the author’s name in relation to the title and ensure that no person should get larger billing than the author and only stars are allowed above the title billing. Consider the following model language:
"The Author shall receive billing credit in all programs, advertising, and publicity for the Play under the control of the Producer. The Author shall be accorded billing with respect to the Play on a line by itself, immediately following the title of the Play, and no one other than the Producer or stars shall be billed above the title. Author’s billing shall be in a type size no less than 50% of the size of the title and no less than 25% of the size of the largest lettering of any artwork or logo title. No Person (other than stars) shall receive billing larger or more prominent than the Author, and only stars and the director may be billed as large or prominently as the Author."
In addition to the above, most billing provisions will also require an author’s biography to appear in any program where any other person (actor, director, etc.) receives a biography.
Interestingly, if a producer fails to comply with the billing provision of a contract, it is not often deemed a breach of contract, provided the producer remedies the error in a timely fashion.
Additional Noteworthy Provisions
In addition to the top six terms noted above, there are a few other terms that are worthy of mention. First is a filming provision. Most production agreements will also grant the producer the right to create one archival copy of the production, along with the right to use excerpts of the work for promotional purposes. It is always a good idea for the author to negotiate the ability to use these materials for their own non-commercial purposes. Over the last few years, producers have been trying to get more out of the filming clause. For example, they may wish to present livestreamed performances or film the entire show for presentation on a streaming service. In such an event, you should consider entering into a separate agreement granting them the right to present such performances, which includes provisions to safeguard your work from piracy. [See, DG Model Digital Rights Agreement and Livestream Addendum.] They may also request that copies be made and sold to the public. These aren’t necessarily standard terms, so they should be carefully considered.
Second, per diems and expenses. Although these are highly negotiable terms, it is incumbent on the author to negotiate any such benefits that they wish to receive. If it isn’t written in the agreement, it isn’t guaranteed. [See, Jeremy Berman, “Managing Your Audiovisual Rights,” The Dramatist (Nov/Dec 2015); David Friedlander, “Preserving Your Production: Video or No,” The Dramatists Guild Quarterly (Summer 1996).]
Third is boilerplate. Any contract will include basic boilerplate language. Commonly found terms include dispute resolution (how disputes will be resolved), choice of law (which state’s law will apply in evaluating this agreement), notice provisions (how should the parties contact one another where approvals are required), and representations and warranties (promises that the parties have the right to enter into the agreement and protections against misrepresentation). These clauses are there to help clarify the terms of your relationship.
Conclusion
In conclusion, while the specifics of a particular production agreement will vary based on the situation, the terms noted above should appear in all production agreements, from the agreement of a seasoned Broadway writer to the agreement of a novice presenting a new work at the local library. While it’s critical that you read your entire agreement, keeping an eye out for these key terms will start you out in the right direction.
As always, the Business Affairs Department welcomes Guild members to submit unsigned production agreements for review.
