In producing films, televisions and musical recordings, crew agreements are frequently used between the production companies and the below-the-line staff members.
Examples of below-the-line staff members:
- Director of Photography
- Video/Music Editor
- Television Casting Director
- Featured Film Composer
- Post-Production Editor
In drafting such crew agreements, I notice a few key elements that ultimately construe a deal. These elements include professional union applicability, payment schedule, overage rate, expenses, insurance requirement, intellectual property ownership, confidentiality, non-compete clause, etc. Here, I would like to talk about a few elements that are easily overlooked by the contracting parties, which however, play important roles in day-to-day business operations.
Hired staff members are usually independent contractors and their works, under most contracts, are entirely owned by the production company. There is a common clarification based on the term “works-made-for-hire” in such contracts. That being said, it would be a separate conversation to credit the staff member as the editor, director, designer, or writer (the list goes on..) in the final product. For example, an illustrator’s work, including all copyright therein, can be entirely owned by a production company. Nevertheless, the production company can agree to accredit the illustrator with the “Illustrated by [YOUR NAME]” credit on the project. When negotiating accreditation among the parties, all parties should also consider future credit in the derivative works. A writer for a novel is not necessarily a writer for the adapted screenplay based on the same.
Limitation of Remedy
When finalizing a production deal, it is not pleasant to think about the possible disputes and lawsuits if something goes wrong in the project. Alas, things do go wrong in life. Sometimes, low budget productions would prefer a binding arbitration clause in a chosen location, to prevent court litigation proceedings once for all. On the other hand, if the production is insured with an Error & Omission policy, the production would (potentially) be able to recover more in a civil court. Another important element is the availability of equitable relief, a.k.a., injunctive relief. When injunctive relief is not excluded from the contract, the (alleged) damaged party can (potentially) delay or even shut down the production.
Seats in the Premiere
When a staff member signs a crew agreement with the production, it is difficult to cover all details in future events. One detail in film/television productions, which I find interesting to discuss, is whether to invite a specific staff member to the film/television premiere. Above-the-line members, such as the director, lead actor and producer, are naturally guaranteed with seats in the premiere. In the same time, it is unclear for other important below-the-line staff members, such as director of photography, editor and assistant director, in terms of the all-expenses-paid invitations to a premiere, sometimes takes place in a different continent. So, for crew members, if you want a seat in the premiere with travel expenses reimbursed, better put all of that in the crew agreement in the first place.
Silvia Sun, Esq.
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