What did I forget in my contract?? at DVinfo.net

Bob Costa · June 7th, 2005, 12:12 AM

I am drafting up my first corporate production contract. Besides all the stuff defining the project, here is the "fine print" I have come up with. What issues or clauses did I forget to think about? This is for T&M type projects, not fixed price jobs (where I clearly would need extra language to cover change orders).

*************************
Approvals. Client Approvals will be required at several points during each project. These milestones are usually 1) treatment approval 2) script approval, 3) shot list & production date approval, 4) music approval, 5) rough edit (content) approval, 6) final approval. Each of these approvals are critical, and insure that the Producer and the Client are working towards the same goal while minimizing the cost and time effects of any required changes. Failure to grant any approval will result in cessation of the project until such approval is granted. Furthermore, delays in granting approval of any specific step may result in project delays in excess of the delay in approving that project milestone.

Employee Personal Releases. Any persons appearing in a video are required to sign a personal release prior to appearing. To the extent that the Producer relies on the Client’s written or verbal assurances that employees are covered by such a release, Client hereby indemnifies the Producer, its assigns, agents, licensees, affiliates, clients, principals, and representatives against any claims arising from assertions that such permission was not granted, has been revoked, or is otherwise not applicable. All non-employees of the client, including professional actors and other third parties, will be required by the Producer to provide a personal appearance release, and it is the Producer’s responsibility to acquire and retain such releases.

Content Indemnification. It is understood by the client that persons or companies may rely on information contained or provided in any video produced on behalf of the client. Furthermore, production of a video often entails mention or display of items protected by various intellectual property laws, including copyrights, trademarks, patents, and trade secrets. Since the Producer does not have the technical or legal expertise to evaluate this information, Client hereby indemnifies the against any claims of errors, omissions, or property violations and any resultant criminal or civil liability for same.

Payment Terms. All invoices are due and payable when presented. Invoices more than 30 days past due will be charged a late payment fee of five percent, and a monthly interest charge of 2 percent monthly (24% annual). Invoices will be rendered monthly, or at appropriate project milestones. Any deposits paid for a project will be applied against the final payments due. No copyright transfer will take place unless all invoices for a project are paid in full, including late charges.

Limitation of Liability. The Producer will use best efforts in making audio and visual recordings and of editing and producing any projects for the client. However, in no case does the Producer guarantee that specific scenes, images, people, places, sounds, music, conversations, or speeches will be captured or appear in the final product. The Producer’s liability to the client will not exceed a refund of amounts paid, even in the case of a total failure to capture an event due to equipment failure or other cause.

DVD-R Disc Compatibility with Home DVD Players. The DVD-R discs provided by the Producer are 100% DVD compliant as specified by the DVD Consortium, a group comprised of the ten companies who originated the DVD format. 95% of the DVD players on the market today will play this DVD. These players are generally produced by the major manufacturers and are 100% DVD compliant. Unfortunately, some manufacturers, in a rush to get products to market, build their DVD machines to work on most discs, realizing that some features of DVD may not work. Many of these machines have problems playing certain Hollywood titles as well as DVD-R discs which are the only reasonable media option when creating short run or one off DVD production. Replicated DVDs like the ones you rent in the video stores are 100% compatible but have a 1000 disc production minimum. The DVD-R disks provided by the Producer are suitable for replication.

Copyright Release. Client and it’s assigns, agents, and successors are hereby granted permission in perpetuity to make an unlimited number of copies of referenced production for any appropriate use, provided all copyright notices remain intact and all project-related invoices are paid in full. Producer retains the right to use the production in whole or in part as part of a portfolio of work or capabilities to present to future clients or prospects.

This agreement is governed by the laws of the State of Florida.

Dan Diaconu · June 7th, 2005, 02:08 AM

Quote:

Originally Posted by Bob Costa

Failure to grant any approval will result in cessation of the project until such approval is granted. Furthermore, delays in granting approval of any specific step may result in project delays in excess of the delay in approving that project milestone.

>>>>>Who should cover the (increased) COST due to delays!!!!!!!!!<<<<<<<

Client hereby indemnifies the Producer, its assigns, agents, licensees, affiliates, clients, principals, and representatives <<<HARMLESS?>>> against any claims arising from assertions that such permission was not granted, has been revoked, or is otherwise not applicable.

Since the Producer does not have the technical or legal expertise to evaluate this information, Client hereby indemnifies the <<<WHO?>>><<<and HOW>>> against any claims of errors, omissions, or property violations and any resultant criminal or civil liability for same.

No copyright transfer will take place unless all invoices for a project are paid in full, including late charges. ( AND other subsequent INCREASED COSTS DUE TO this fact....)

Limitation of Liability. The Producer will use >>best efforts<< (vague...)

My 2c on the issue. Hope it helps.

Bob Costa · June 8th, 2005, 10:43 AM

Thanks Dan. As far as cost overruns, this is for an hourly billing arrangement. Other points noted.

Paul Tauger · June 8th, 2005, 11:22 AM

Bob, I hate to say it, but there is an awful lot wrong with the language and some of the provisions of what you've drafted. I can't provide legal advice to non-clients, but I'd _strongly_ urge you to take your draft to an attorney and let him or her edit it a bit.

Bob Costa · June 8th, 2005, 11:48 AM

Paul, always good advice, and I will certainly have them look it over.

Mostly I am wondering what major clauses I forgot to include relative to a video contract (like the content indemnification). I have attorneys that will review language, but they are generic attorneys, not video production specialists. They seldom suggest additional clauses unless boilerplate stuff like prevailing party etc, they just tune up whatever I write. And I did not post some of my boilerplate, just the stuff related to video.

Paul Tauger · June 8th, 2005, 01:12 PM

Ah, that's fine then. The kinds of things I was concerned about would be caught by a general practitioner.

Tracy Graziano · June 17th, 2005, 03:42 PM

Is anyone familiar with filmtvcontracts.com? are they good contracts? Are there any available on there that anyone knows of that are appropirate for doc films, and would be good as a contract between client and production company?
Thank you!

June 7th, 2005, 12:12 AM	#1
Bob Costa Major Player Join Date: Nov 2004 Location: Venice, FL Posts: 850	What did I forget in my contract?? I am drafting up my first corporate production contract. Besides all the stuff defining the project, here is the "fine print" I have come up with. What issues or clauses did I forget to think about? This is for T&M type projects, not fixed price jobs (where I clearly would need extra language to cover change orders). ************************* Approvals. Client Approvals will be required at several points during each project. These milestones are usually 1) treatment approval 2) script approval, 3) shot list & production date approval, 4) music approval, 5) rough edit (content) approval, 6) final approval. Each of these approvals are critical, and insure that the Producer and the Client are working towards the same goal while minimizing the cost and time effects of any required changes. Failure to grant any approval will result in cessation of the project until such approval is granted. Furthermore, delays in granting approval of any specific step may result in project delays in excess of the delay in approving that project milestone. Employee Personal Releases. Any persons appearing in a video are required to sign a personal release prior to appearing. To the extent that the Producer relies on the Client’s written or verbal assurances that employees are covered by such a release, Client hereby indemnifies the Producer, its assigns, agents, licensees, affiliates, clients, principals, and representatives against any claims arising from assertions that such permission was not granted, has been revoked, or is otherwise not applicable. All non-employees of the client, including professional actors and other third parties, will be required by the Producer to provide a personal appearance release, and it is the Producer’s responsibility to acquire and retain such releases. Content Indemnification. It is understood by the client that persons or companies may rely on information contained or provided in any video produced on behalf of the client. Furthermore, production of a video often entails mention or display of items protected by various intellectual property laws, including copyrights, trademarks, patents, and trade secrets. Since the Producer does not have the technical or legal expertise to evaluate this information, Client hereby indemnifies the against any claims of errors, omissions, or property violations and any resultant criminal or civil liability for same. Payment Terms. All invoices are due and payable when presented. Invoices more than 30 days past due will be charged a late payment fee of five percent, and a monthly interest charge of 2 percent monthly (24% annual). Invoices will be rendered monthly, or at appropriate project milestones. Any deposits paid for a project will be applied against the final payments due. No copyright transfer will take place unless all invoices for a project are paid in full, including late charges. Limitation of Liability. The Producer will use best efforts in making audio and visual recordings and of editing and producing any projects for the client. However, in no case does the Producer guarantee that specific scenes, images, people, places, sounds, music, conversations, or speeches will be captured or appear in the final product. The Producer’s liability to the client will not exceed a refund of amounts paid, even in the case of a total failure to capture an event due to equipment failure or other cause. DVD-R Disc Compatibility with Home DVD Players. The DVD-R discs provided by the Producer are 100% DVD compliant as specified by the DVD Consortium, a group comprised of the ten companies who originated the DVD format. 95% of the DVD players on the market today will play this DVD. These players are generally produced by the major manufacturers and are 100% DVD compliant. Unfortunately, some manufacturers, in a rush to get products to market, build their DVD machines to work on most discs, realizing that some features of DVD may not work. Many of these machines have problems playing certain Hollywood titles as well as DVD-R discs which are the only reasonable media option when creating short run or one off DVD production. Replicated DVDs like the ones you rent in the video stores are 100% compatible but have a 1000 disc production minimum. The DVD-R disks provided by the Producer are suitable for replication. Copyright Release. Client and it’s assigns, agents, and successors are hereby granted permission in perpetuity to make an unlimited number of copies of referenced production for any appropriate use, provided all copyright notices remain intact and all project-related invoices are paid in full. Producer retains the right to use the production in whole or in part as part of a portfolio of work or capabilities to present to future clients or prospects. This agreement is governed by the laws of the State of Florida. __________________ You are either growing or dying.

June 8th, 2005, 10:43 AM	#3
Bob Costa Major Player Join Date: Nov 2004 Location: Venice, FL Posts: 850	Thanks Dan. As far as cost overruns, this is for an hourly billing arrangement. Other points noted. __________________ You are either growing or dying.

June 8th, 2005, 11:48 AM	#5
Bob Costa Major Player Join Date: Nov 2004 Location: Venice, FL Posts: 850	Paul, always good advice, and I will certainly have them look it over. Mostly I am wondering what major clauses I forgot to include relative to a video contract (like the content indemnification). I have attorneys that will review language, but they are generic attorneys, not video production specialists. They seldom suggest additional clauses unless boilerplate stuff like prevailing party etc, they just tune up whatever I write. And I did not post some of my boilerplate, just the stuff related to video. __________________ You are either growing or dying.

June 8th, 2005, 11:22 AM	#4
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	Bob, I hate to say it, but there is an awful lot wrong with the language and some of the provisions of what you've drafted. I can't provide legal advice to non-clients, but I'd _strongly_ urge you to take your draft to an attorney and let him or her edit it a bit.

June 8th, 2005, 01:12 PM	#6
Paul Tauger Wrangler Join Date: Sep 2002 Location: Los Angeles (recently from San Francisco) Posts: 954	Ah, that's fine then. The kinds of things I was concerned about would be caught by a general practitioner.

June 17th, 2005, 03:42 PM	#7
Tracy Graziano Regular Crew Join Date: Jun 2005 Posts: 41	Is anyone familiar with filmtvcontracts.com? are they good contracts? Are there any available on there that anyone knows of that are appropirate for doc films, and would be good as a contract between client and production company? Thank you!