OT : Contract Help

goodtimej wrote on 6/22/2008, 10:11 PM
I am getting ready to embark on quite a large project. It is going to be a how-to-sports series of DVDs, probably 3. There are 3 people involved - the instructor, the "facilitator" who basically brought us together, takes care of location clearance, makes sure everyone is where they are supposed to be and on time and also will take care of the marketing of the product afterwards. The third person, of course, is me. I am filming and editing the entire product and I am guessing that I will spend at least 200 hours of work.

No one in this project is getting paid up front, basically we are all just going to split profit into thirds after up-front costs are paid. I have worked with the "facilitator" before and know him to be a great guy, but it was in a situation where he hired me for my services and my pay had nothing to do with anything but me doing my job.

I have my regular production contracts that I am very happy with, but they don't cover this situation that well I don't think. I feel like I need to have something in my contract that protects me just in case I get 40 hours into filming and the instructor decides for whatever reason he does not want to finish or doesn't have the time to finish filming until some unforseen date in the future that will never really happen. It would also be quite bad for me if I got all the way through filming and editing, all the way to the finished product, and for some reason the "facilitator" decided that he didn't have the time to market the DVDs and just put it on the permanent back burner. I mean this is a lot of time for me to just maybe throw away.

Now to my question. Do any of you have ANY sort of advice to help protect my interests out here? Any legalese that I can drop into my contracts? Any previous experience you can tell me about? I just don't want to get screwed.

I don't mean this thread to seem paraniod, but you know, CYA. Thanks again!

Comments

ushere wrote on 6/22/2008, 10:31 PM
it has been my experience (30+ years), that it doesn't really matter what's in any contract you draw up, and the client signs - if they don't want to pay, they wont.

are you an 'upfront' cost?

interestingly, when i first arrived here and set up my facilities, i was 'feted' by the indie crowd. did my ego the world of good till it came to talking turkey (money) - it was all 'share the profits', 'will lead to greater things', 'this is only a pilot, we'll get paid when they pick it up', etc., etc.,

if you believe it's a goer, and you can trust your partners, go for it, you've only got your time to loose. DO NOT put money into ANYTHING, your services (in these circumstances) are worth far more...

it's only in the last 10 years that i've started doing independent productions, and i have to say, when they work, they're very profitable. when they don't - i only have myself to blame (oh, and the wife for not stopping me when she said it wouldn't fly!)

good luck

leslie
Coursedesign wrote on 6/22/2008, 10:34 PM
Your concerns are well founded.

First of all: "split profit 3 ways" may mean Revenues less Production Expenses [equipment rentals, outside crews, grub, rental of Facilitator's Truck at $500/day, etc.] less Facilitator's $50,000 producer fee equals $0.33, split three ways = $0.11 to you.

That math has been used continuously for about a century, although I'm erring on the side of being generous above (normally there is no profit to be split, because whoever is doing the accounting is in total control of the final number).

A common way to solve SOME of the problems with these cases is to put in the Agreement that the rights to the footage shot and edited by you stays with you until you have been paid at least $X.

I suggest you look at SAG's contracts for this situation. You're not an actor I presume, but the concepts translate. You can get this from SAG, I think their web site has it nowadays even.

There are some good books on Production Agreements that I have used for many years. I think I recall seeing something that might cover your situation. If you can't find another solution, ask me and I'll go through this.

Coursedesign wrote on 6/22/2008, 10:40 PM
Leslie is right that "[no] matter what's in any contract you draw up, and the client signs - if they don't want to pay, they wont."

That's why you keep the rights to the production until you've been paid. That prevents them from making money on it without paying you (and they certainly won't be able to get distribution without signing written assurances that they won't have the cojones to sign if you haven't given your life away beforehand).
ushere wrote on 6/22/2008, 10:49 PM
coursedesign's spot on with his 'rights'. it's about the only guarantee you have - but even then, unless it's for com / public tv release, there's nothing stopping them doing a release via mail order, internet, magazine, etc., where there's no third party checking copyright issues.

still, the rights are better than nothing, and make sure your partners understand what you holding them actually means in practice....

leslie
Coursedesign wrote on 6/22/2008, 11:19 PM
It would really help you to be working with an experienced media IP lawyer.

If you own the rights until you're paid, and you get close to completion and it is clear that no money will be forthcoming, there are additional things you can file that could enable you to get an immediate injunction rather than 7-8 years later in civil court.

Where do you live (or do this project)?
goodtimej wrote on 6/23/2008, 8:14 AM
Thanks for the words everyone, I can always count on this board to help out. To answer your question I live in Idaho. And to answer another question, this is bascially really only a three man crew. Our costs out of pocket upfront I am guessing will be less than $400.
Are you suggesting that I should not even put any money into marketing, that someone else should pick up this because of the work I am putting into editing and filming?
JackW wrote on 6/23/2008, 11:27 AM
You obviously have some misgivings about the whole deal or you wouldn't have posted this question in the first place.

It seems to me that you're trying to wear two hats at the same time: you're thinking about being a videographer/businessman on the one hand, and an entrepreneur on the other, betting on the come that this venture will make money.

Your investment of 200 hours is worth probably twenty to thirty thousand dollars, with no guarantee that it will pay back a cent. And you seem apprehensive that the whole deal may fall apart, and that you may be cheated out of your future earnings by the "facilitator."

So it looks like you have two choices: you can gamble that the 200 hour investment will pay off and, like any gambling, be prepared in advance to lose it all. In this scenario I'd ask the "facilitator" to cover my out-of-pocket costs, but accept that I'd get no income from the project until the discs began to sell.

Or you can approach this from a business perspective and get paid for the production work as it is completed. If it were I, I'd set up a three part contract so that I got paid in full up front for shooting the material, with another payment part way into the edit. I might feel comfortable gambling a little by making the final payment contingent upon the sale of the DVDs, receiving either full payment when the deal closed, or receiving a royalty on each disc sold.

Given either scenario, under no circumstances would I release the tapes to the "facilitator" until payments were received. Anything that went out of my studio for approval would be watermarked so it couldn't be reproduced.

Finally, I agree completely with Coursedesign: get a good lawyer involved from the start. You're committing way too much time and effort here to expose yourself to unexpected risks, regardless of which route you choose.

JackW

apit34356 wrote on 6/23/2008, 12:14 PM
I would suggest adding a "soft" copyright watermark on the general video that moves slowly. Then a more visual notice of your production company in the corner. So, if no revenue is shared, maybe some new clients will see your work!
winrockpost wrote on 6/23/2008, 12:56 PM
you could set up a lp or llc,, gives you your third on paper,, but if the facilitator dude has a bigger fish,or decides to go hunt for treasure instead ,still nothing you can to do about it if your third is worth 0

if you are worried ,,and cant afford to give the time with nothing in return ,, just bid the job and walk if they dont have the money.


edit :I'm not a lawyer,, check with one regarding lp or llc