As in any business, there are terms of art that are commonly used in negotiations in the entertainment business. I’ve added a glossary that defines some of the words and phrases used, devised or overheard during these discussions.
I encourage my colleagues to email me any additions or corrections. You can click “Lingua Franca” on the gray strip above or here to get to the page.
This is a work in progress, so please check often for updates.
Since this year’s Academy Awards are on Sunday, I’m reposting my August 28, 2007 post, “Credit Where Credit Is Due: Is There Enough Room On Awards Night For More Producers?” for Dealfatigue readers.
Two pictures in contention – “Michael Clayton” and “Juno” – each have four credited producers but according to the Academy’s website, only three producers on each of these pictures are eligible to accept the Best Picture award. So if either of these pictures picks up the award for Best Picture, apparently one producer won’t be getting an Oscar but the other three will. This, despite the fact that the Motion Picture Academy’s rules allow for the inclusion of an additional producer under “extraordinary circumstances.”
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
After five producers received Best Picture Oscars for “Shakespeare in Love” in 1999, the Motion Picture Academy placed a three producer per Oscar limit on any film under contention. The Academy also required the honored three to be fully functioning producers on the pictures; studio execs, personal managers and lawyers (oh, well) need not apply.
Subsequent to enactment, certain producers who were credited on “Crash,” “Little Miss Sunshine” and “The Departed” but eliminated for award contention by this rule made some compelling objections against it. As a result, the Academy is relaxing its requirements, albeit slightly, to allow for the inclusion of one additional producer under certain rare and extraordinary circumstances. Each of the producers must be credited as “producer,” thereby excluding any individuals with executive producer or associate producer credits.
Meanwhile, the Television Academy is tightening its eligibility requirements in an effort to “crackdown on producer credit inflation” by capping the number of individual producers who can receive an Emmy for a comedy series at 11 and a drama series at 10. But even with these higher numbers, exceptions seem to be proliferating with “Gray’s Anatomy” and “House” each having grandfathered eligibility for 13 producer nominations.
Note that neither of these rules limit the number of producer credits accorded to any motion picture or television program. They just limit the number of producers eligible for award nominations. Nevertheless, the academies are right to be concerned with credit dilution. These awards are intended to acknowledge the creative efforts of those responsible for the works in contention. They are also a great way to increase box office gross. As I have said elsewhere in this blog, credits are “the coin of the realm” in the industry and diluting any credit reduces their value just like real currency. However, it is wrong-headed to set arbitrary caps on the number of producers eligible for an award as a means of addressing this capricious credit problem. Mandating that all award eligible producers render meaningful, creative services is a far more equitable way to go.
Until the academies modify their position, reps will need to be creative to increase their clients’ chances. Although the Motion Picture Academy asserts that it is “not bound by any contract or agreement relating to the sharing or giving of credit and reserves the right to make its own determination of credit for award consideration,” I have been involved in several negotiations where reps for producers (myself included) negotiated producer credit order “for all purposes, including award consideration.” Without a more logical approach, it is inevitable that the contractual intent of the parties to producer agreements versus the subjective consideration of the academies will be tested in the near future.
Although “A Chorus Line” opened on Broadway over thirty years ago, the dancers who signed away their life story rights as the basis for the musical back in 1974 recently renegotiated the terms of their deal. The dancers originally signed away these rights for $1 each during “workshop” sessions for the musical.
In 1975, Michael Bennnett, the producer, choreographer and co-writer of the book for the show, renegotiated these terms after “A Chorus Line” moved to Broadway; dividing about one-tenth of his own royalties and about one-third of his rights income derived from the show and its subsidiary rights with the dancers. “This kind of arrangement has now become standard, though with less generous terms, for people involved in workshops that lead to Broadway productions,” wrote Campbell Robertson for The New York Times.
Apparently, many of the dancers remained unsatisfied with these terms. For a more complete chronology, read here.
The Bennett Estate’s recent revival of the show on Broadway triggered the renegotiations. The previous agreement only applied to the original Broadway production not to first class productions like Broadway revivals and related road shows. The revival presented the dancers with a unique opportunity to renegotiate. After 16 months, the dancers successfully negotiated an additional (undisclosed) share of revenues in the current production as well as in all past and future first-class productions of the show.
The “Chorus Line” renegotiation provides broader implications to deal making for two reasons:
1. Leverage only comes from immediately recognizing the other party’s needs and fears in a particular deal and then effectively using that leverage in negotiations. Accurately assessing your leverage can be tricky since your own needs and fears are always in play (this is so even if you have representation – e.g., the writers strike negotiations).
Here, the Estate wanted to mount a new production of “A Chorus Line” which required additional permission from the dancers. The original show and subsidiary rights grossed over $280 million. Clearly, the Estate was a motivated negotiator with that much money at stake. Each of the 37 dancers however, was unorganized and had differing agendas. I suspect the 16-month lag in closing this deal was due in part to those detracting elements on the dancers’ side of the equation.
2. We now live in an era of franchised content – “everything old is new again” as the show tune goes. Even early-stage deals (aka deal memos) should be negotiated accordingly with an eye towards future revenues from media not even conceived at the time the deal is struck. If the deal is worth papering, it is worth papering thoroughly. Opportunities to renegotiate may later prove to be few and far between. In this case, it took the dancers over 30 years to get a taste of these revenues. Most people aren’t prepared to wait that long.
Everywhere you look, change is in the air.
All indications point to the writers strike being called off by Monday; certainly by sometime next week, at the latest. This is great news but it will likely take many months for the industry to get back on its feet and much longer to discern how the industry changed forever as a result of the strike. With NBC head Jeff Zucker talking about changing the business model that dominated the development and production of television shows for the past 50 years, you can be rest assured that some things will never be the same.
The strike in many ways affected a discreet group of people working in the business: the major studios and networks and those writers employed by them. This group by no means represents the entire entertainment industry.
Despite the strike, many non-signatory independents continued to do business and there was a boon in reality television production. Scribes writing screenplays for non-signatory companies continued to write. Nevertheless, there remained a cloud of dread over the entire industry.
Now that the strike appears to be over, I expect that the most dramatic short-term effect will be a spike in industry-wide morale rather than a spike in production. In my negotiations with reps this week, most are optimistic about the near future. To be sure, there is much to be happy about. However, it is unlikely that there will be a significant difference between working conditions over the next few weeks and those of the last few.
The WGA’s rank and file must approve the new contract (though it appears that the strike will be called off while the details are worked out). Many TV shows will remain shut down until next season; some shutting down permanently, making it unlikely that many writers and crew will have jobs to return to next week. The local economy will continue to languish; with industry job losses and mortgage foreclosures likely continuing into the spring if not longer.
However, the new deal should make many writers happy in the longer term. Go here for a summary of the tentative deal. The most notable deal points are the WGA’s exclusive jurisdiction over the Internet and cell phones, a residual kicker in new media reuse fees and separated rights. I will provide a more detailed analysis of the tentative deal in another post.
It will be interesting to see what effect, if any, the WGA’s exclusive Internet jurisdiction will have on those writing new media content. Although many writers of podcasts and similar content will be clamoring to join the Guild, Internet writing services apparently don’t apply towards membership in the WGA. Podcasts and other web content are not generally produced by signatories to the WGA agreement. Consequently such services will not be subject to the WGA’s jurisdiction despite the terms of this deal.
Despite the lack of details, most of my clients writing new media content for the Internet who are not yet Guild members will still expect the new agreement to analogously apply to their writing services even if their employer is not a signatory. Signatories for their part will no longer be able to hire non-WGA scribes to create new media content. Regardless of signatory or membership status, it is safe to say that these developments will likely mean big changes for new media creatives and those that hire them across the board.