“So, you wanna’ be a Producer?!”
Section 1.3 (Page 1 of 5)
KEY POINTS TO CONSIDER WHEN COMMISSIONING
OR OPTIONING A NEW PLAY OR A NEW MUSICAL
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
•
•
•
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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.
© D Michael Rose
Sponsored by Walton & Parkinson Ltd, insurance brokers to the theatre industry.
Tel: 0845 218 4140. Email: [email protected].
“So, you wanna’ be a Producer?!”
Section 1.3 (Page 2 of 5)
KEY POINTS TO CONSIDER WHEN COMMISSIONING
OR OPTIONING A NEW PLAY OR A NEW MUSICAL
Applicable to Option
on New NonCommissioned 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?
If so for how
long?
• Scope of option:
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• Qualifying period:
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• Qualifies for:
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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?
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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?
usually 21 consecutive performances (excluding
Sundays and public holidays) commencing
within option period.
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?
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If licence:
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Query perpetual?
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Query exclusive?
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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?
Cont ....
© D Michael Rose
Sponsored by Walton & Parkinson Ltd, insurance brokers to the theatre industry.
Tel: 0845 218 4140. Email: [email protected].
“So, you wanna’ be a Producer?!”
Section 1.3 (Page 3 of 5)
KEY POINTS TO CONSIDER WHEN COMMISSIONING
OR OPTIONING A NEW PLAY OR A NEW MUSICAL
Applicable to Option
on New NonCommissioned 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?
•
Applicable to both
Newly Commissioned
and NonCommissioned works
Sub-licensing:
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Permissible generally?
Limited to affiliates?
Subject or not to approval?
Any approval not to be unreasonably
withheld?
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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.
Cont ....
• Reserved rights:
•
•
© D Michael Rose
Sponsored by Walton & Parkinson Ltd, insurance brokers to the theatre industry.
Tel: 0845 218 4140. Email: [email protected].
“So, you wanna’ be a Producer?!”
Section 1.3 (Page 4 of 5)
KEY POINTS TO CONSIDER WHEN COMMISSIONING
OR OPTIONING A NEW PLAY OR A NEW MUSICAL
Applicable to both
Newly Commissioned
and NonCommissioned works
• Hold-Backs:
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• Royalties:
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• Subsidiary revenue:
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• Payment procedures:
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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.
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?
Royalties
•
in UK within 7 days after end of each
week
•
overseas within 14-30 days after end
of each week/month
•
accompanied by copy box office
returns.
Cont ....
© D Michael Rose
Sponsored by Walton & Parkinson Ltd, insurance brokers to the theatre industry.
Tel: 0845 218 4140. Email: [email protected].
“So, you wanna’ be a Producer?!”
Section 1.3 (Page 5 of 5)
KEY POINTS TO CONSIDER WHEN COMMISSIONING
OR OPTIONING A NEW PLAY OR A NEW MUSICAL
Applicable to both
Newly Commissioned
and NonCommissioned works
•
•
•
•
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Subsidiary Revenue
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motion picture within 14 days of
receipt
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otherwise quarterly within 60 days
after end of each quarter
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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:
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•
• Moral Rights:
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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
Sponsored by Walton & Parkinson Ltd, insurance brokers to the theatre industry.
Tel: 0845 218 4140. Email: [email protected].