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Eve Foreman: navigating contracts, copyright and legal terms for Australian screen projects
38 Plays1 day ago
On today’s episode is lawyer Eve Foreman, who’s the principal of entertainment law practice Macleay William. Eve talks through whether legal requirements differ if your project is low budget or big budget, some of the legal jargon people might encounter, what to do if you need clearances for things like video game characters or songs, terms to expect or look out for if you’re selling your project, and much more.
Eve has worked in the film and television industry for over 20 years, starting with 'hands on' experience in the production office, script department and in continuity and then becoming admitted to practice as a lawyer. She predominately acts for producers across their development, financing, production and distribution work, as well as advising US studios on production work in Australia.
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Transcript
Introduction and Acknowledgment
00:00:03
Speaker
Welcome to Breaking Screen, a podcast about the Australian screen industry and the creative people within it. I'm your host, Caris Bizzaca, and I'm recording this podcast from the lands of the Gadigal people of the Eora Nation, where I'm very grateful to be a visitor and be able to work on these lands. Always was, always will be.
Guest Introduction: Eve Foreman
00:00:21
Speaker
Joining me on today's episode is Lawyer Eve Foreman, who's the Principal of Entertainment Law Practice, Macleay William. Eve has worked in the film and television industry for over 20 years, starting with hands-on experience in the production office, script department and in continuity, and then becoming admitted to practice as a lawyer.
00:00:39
Speaker
She predominantly acts for producers across their development, financing, production and distribution work, as well as advising US studios on production work in Australia.
Legal Aspects in Film Projects
00:00:49
Speaker
Throughout the podcast, Eve covers a variety of topics, including whether legal requirements differ if your project is low budget or big budget, some of the legal jargon people might encounter, what to do if you need clearances for things like video game characters or songs, terms to expect or look out for if you're selling your project, and much more.
00:01:09
Speaker
Here's that chat.
Career Path to Entertainment Law
00:01:14
Speaker
And so we always start the podcast the same way, talking about inciting incidents. What would be the inciting incident of your career? um Probably when I was at law school and i don't Even though, full disclosure, both parents are in the film industry as creatives. So my dad's a cinematographer and mum's costume designer. They're both semi-retired now, working on kind of art film and projects and docos and the like.
00:01:39
Speaker
But i I didn't actually appreciate at that time that you could kind of work as a lawyer exclusively in film and TV. And I didn't think I wanted to get into the film and TV industry because I'd sat on the side of freelancers where it was all very kind of last minute and you wouldn't know when the next job was coming up. and Sometimes you'd feel amazing like off the back of several projects and then other times you'd have big periods of unemployment and that as a child of that I was, I didn't like that at all.
00:02:09
Speaker
So I wasn't really interested in getting into the film and TV industry. But then a film producer was like, have you ever thought about doing entertainment law? And I hadn't, I don't think I appreciated there was that area. i didn't think I was interested in it.
00:02:25
Speaker
And he was just super enthusiastic and he's like, why don't you come along, take some time out of law school and come along and mirror what I'm doing in film production and I'll make sure all the contracts that I'm doing come through you and you'll get an understanding of what it is and see if you like it.
Early Career Experiences
00:02:40
Speaker
um So just a really generous person. I feel like I've been lucky with the generosity of some really fantastic mentors. So he was the first one, Gus Howard, working at Southern Star, I think, at the time.
00:02:51
Speaker
and So I came along and worked on a project called Rain Shadow and mirrored him and I really enjoyed it. And they were a bit light on in the continuity script department, so I ended up helping out there. And then off the back of that, I was finishing my law degree and just working on a bunch of short films and other bits and pieces. So then I got quite interested in film production. I thought I wanted to be a film producer, so then I did a bunch of different things.
00:03:16
Speaker
random things to get better on set experience. a South Australian, South Australian Film Corporation was really supportive. I did SAFC funded attachments for both production and continuity and worked with some producers who came to South Australia to shoot, Leah Churchill Brown on Beautiful Kate and Tim White on The Boys Are Back. And then I moved to Sydney to keep working with Leah and Tim.
Transition to Entertainment Law
00:03:39
Speaker
Yeah, so I would say Gus Howard was the first one who's like, hey, there's this thing called Entertainment Laura and you might be interested in it And then through working with really generous, lovely, exciting producers such as Leah and Tim.
00:03:53
Speaker
Yeah. And then, you know, the next stage was the lawyer stage. I got admitted to practice. I was in Sydney. Leah and Tim were at a quiet development stage. I thought, I may as well get admitted, to see what happens. And did my placement with Nina Stevenson, who was the founder of Macleay William with Greg Sitch.
00:04:09
Speaker
And I loved it. I was like, oh, this is the side for me. This feels right. And 16 years later and I now run the firm. So that's, yeah. And then what is your um role in
Role as a Lawyer in the Screen Industry
00:04:22
Speaker
the industry? What do you do?
00:04:25
Speaker
I'm working as a lawyer. I'm the principal of Macleay William Law Firm. Majority of our clients are independent Australian film and television producers.
00:04:36
Speaker
Although we do also at the firm do a lot of studio work, so offshore studio works when studios come here to film, we'll be working on their productions as well for a lot of the studios, not all of them, so it might depend project project. That works quite different. So for our clients that are Australian film and television producers, we're generally following the production from start to finish. A lot of that work's scripted, although some of it's also kind of entertainment quiz shows, that type of thing, entertainment shows for networks.
00:05:05
Speaker
Regardless, we'll be following a project from its inception. So we'll be doing chain of titles. So the ideas and all the contributors and moving all of those rights into the rights holding entity, the producer. So following that throughout development.
00:05:17
Speaker
And then once the producer has been able to procure the finance, we'll then be jumping onto the finance contract. So investment agreements, grant agreements, loan agreements, et cetera, to work on the close of finance. So that's getting all the contracts in place that enable the producer to secure the cashflow and the budget to make the film. So that will be the close of finance. That's a really busy period of time.
00:05:41
Speaker
And then we'll be following production as well. These don't always, there's overlap sometimes, but the next phase then would be production with cast agreements, location agreements, clearances and the like. And then moving into post-production, post-production house agreements or licensing of music and footage and VFX and things like that. And, um,
00:06:01
Speaker
Then the life of the project in terms of exploitation, if they're doing sales, we can help with sales agreements. And, um you know, if other producers want to license clips from their shows, et cetera, et cetera. So then kind of following the life of the project. So that's really kind of involved in everything for the majority of our independent clients. They're clients that the firm's been working with for a really long period of time, including with Nina Stevenson and Greg Sitch's work before they became McLean-William as well. So there's kind of, we've got a lot of really longstanding clients, which is fantastic because then you get to really know their work and their business operations and, know,
00:06:35
Speaker
their catalogue and things like that, and that's really rewarding to be involved in all of those aspects. And the studio work differs a little bit because it's you're not really involved in the finance contracts. You might be involved in the structure documents, how they set up their project in Australia from a structural point of view, feeding into the studio, but obviously it's self-financed with the studio. So more we're doing production work and that's just being a little bit more involved with the local cast agreements. You might be doing negotiations with the union, MEAA,
00:07:05
Speaker
And locations, it's always very location heavy, prop agreements, equipment hire, things like that. So it's more kind of production based work with the studios. And and then the entertainment shows are more a network deal. That's kind of the main agreements, usually 100% network funded and then doing guest releases and things like that throughout production. So that's the majority of our work. There's some exceptions. We do some radio works and some other bits and pieces, but that's the majority of what we do.
00:07:30
Speaker
Yeah. Oh, great. um And so could we talk through, yeah a couple of terms that might come up in this conversation and what they mean, just because there can be, you know, a bit of, i suppose,
Understanding 'Chain of Title' in Film
00:07:43
Speaker
jargon. So the first one would be chain of title. What's chain of title?
00:07:48
Speaker
Yeah. So chain of title is really following the rights in the concept um and following the chain of what's happened historically or what happens throughout development I mean, technically, chain of titles following right through until the end of production, but usually it's used really to describe the underlying rights agreements. So if producer's making a project and it's adapted from a book, then probably the first agreement in the chain would be the option agreement to secure an option in the film rights over the book.
00:08:20
Speaker
and to obtain an assignment of those necessary film rights or an exclusive license in those film rights to make the project. So that might be like the first agreement in the chain. So then it secured the underlying work and then it runs maybe workshops with individuals or it gets some writers to start writing.
00:08:35
Speaker
then there would be workshop agreements between the producer and the individuals or the companies if that's the way they contract. and the rider agreement. So then all the contributions of the workshop and the scripts are then assigned over to the producer.
00:08:49
Speaker
There might be a development financier who's putting in some money and in return for that, they might take a small share of copyright in the materials that they're funded, which is as really as a security for repayment. So the development financier might own a small share of copyright in what they're funding to ensure that they're repaid their development funding.
00:09:07
Speaker
So that would be part of the chain as well because there's copyright being granted to a development financier. So you're following where are the rights sitting throughout the process and chain of titles usually used to kind of refer to the underlying rights during development and moving that over to the producer and maybe the producer's disposing interests elsewhere such as a share of copyright to a development financier.
00:09:31
Speaker
um So that's really the key chain of title agreements. Although technically when you move into financing and a producer's granting a copyright interest to investors, it's licensing broadcast rights to a broadcaster, it's licensing various rights to a distributor, et cetera. They're dealings in copyright that are really part of the chain and it's entering into cast and crew agreements to get the assignment of the results and proceeds of their services over to the producer.
00:09:58
Speaker
They're clearing
Worldwide Distribution and IP Considerations
00:09:59
Speaker
products and the like. So they're all dealings with copyright that are technically chain of title as well. But when people talk about your chain of title documents, usually it's used to apply to the underlying rights, so the concept and the contributions to the script essentially and the documents that deal with that. So that's that's really how it's most often used in talking about chain of title. But the chain of title really is just following that chain like from the inception in relation to everybody's contributions, the chain of copyright essentially, where's it going, who owns what.
00:10:32
Speaker
And um so then intellectual property or IP as people call it. Yeah, I mean, similar kind of considerations there in terms of moving the rights or getting the necessary clearance of the rights in respect of what's shown on screen. The IP considerations are quite similar to the chain of titles. So the the clearance of the underlying rights, the concept and the script materials through to how IP is dealt with in the financing, so who's getting what rights in the project, depending on who's financing, who's investing, who's the commissioning entity, et cetera, and following the various rights. So there's very similar considerations really in terms of IP and chain of title. There just might be slightly broader legal considerations than just IP in terms of clearance and other potential legal claims.
00:11:23
Speaker
So there's Requirements at law and, you know, I'm an ah as Australian solicitor, so my thoughts will be based on and my knowledge and my expertise is on the Australian landscape, but a project will be exploited throughout the world. So a producer needs to be following guidelines essentially that are imposed by insurers commonly, Arizona emissions insurance, to ensure that they're following a set of requirements that really go towards worldwide exploitation.
00:11:54
Speaker
of the program. I only mention that because sometimes people will say, hey, isn't there that exception in the Copyright Act that says, you know, this is okay because it's reasonably incidental for filming under the Australian Copyright Act, but really it produces having to consider worldwide exploitation. And sometimes the insurer will maybe have requirements that may go a little bit broader than necessarily what a right is at law.
00:12:19
Speaker
because a producer is required to have the insurance and the insurer to cover it wants to minimise the possibility of a claim. And sometimes people can pop up and cause costs and heartache without necessarily having a legally enforceable claim. So eo will be particularly mindful of products and things like that that can be an area where people are a bit more protective and want to litigate a bit more because they don't want their products to be seen a certain way. So that's in relation to kind of clearance of things that will be seen on screen.
00:12:51
Speaker
So mentioned that because I guess that might be protected by IP. There might be like a design or an element of intellectual property that's covered by that, or it might be another area such as misleading and deceptive conduct, another area of law, and it might span various jurisdictions. So what a producer needs to contract and clear might be a little bit broader than what we think of as being the Australian legal landscape because of the contracts that they've entered into, because of the insurance that they need to obtain to help ensure there's no claim made in respect of exploitation of the program.
00:13:27
Speaker
When you're saying that, would that be, would an example be And tell me if this is going down the wrong route, but would an example be if you used like a phone brand in a shot of your project and you didn't get clearance from that company to be able to use that in the... And it could have negative connotations. You could, those kinds of things where you're not clearing the use of someone else's intellectual property. It doesn't necessarily mean like a book adaptation. it can, but it can also mean a phone brand or correct some kind of product being used on screen. Yes. Yes. And that may or may not be an IP claim. So if if you were showing
00:14:07
Speaker
a phone brand and the phone was shown to be faulty and that company argued that in you doing that, that caused them some loss that might not necessarily be an intellectual property claim. It might be some kind of like misleading and deceptive or confusion in the marketplace type claim. So it might not necessarily be intellectual property. Whereas singing a line from a song
Contracting and Financing in Film
00:14:31
Speaker
when you don't have clearance for that is a copyright infringement and a claim can be made for that. So it might depend on what the usage is. If you don't have clearance for something and you show it in the film, it might be okay depending on what context it comes up. But almost always, I mean, certainly in the area that I'm dealing with for the scripted and third-party funded productions, a producer will need to have insurance in place and it would need technically it needs to disclose to the insurer if it hasn't cleared something
00:15:00
Speaker
that it's been required to clear under the clearance procedures imposed by that insurer. yeah Yeah, okay. With a term like contracting, I feel like that's one that people hear a lot, but like in a nutshell, what is contracting?
00:15:14
Speaker
You know, a lot of the film contracting is to do with IP or maybe to do with releases and the like. And obviously the contract will cover other rights and obligations, so it will offer other protections as well. The contracting really refers to the legally binding agreements that a producer will enter into the various stages of production.
00:15:35
Speaker
So, again, it it kind of follows that chain and and what I've been talking about. So the contracting during development would be the agreement with the underlying rights owner, whoever's created the concept, those that are contributing to it, script writers, researchers, workshop attendees, et cetera. So that's the contracting that's happening during development are to secure those rights in the rights controller, usually the producer, to obtain some funding that would be under a contract as well. So that's really contracting is used for the contracts that are needed for the applicable stage of development, production, post-production, et cetera, of project. Okay. And um what would a term like a close refer to? Close finance or closing. So once the producers developed an idea and they're ready to take it to the marketplace and they've secured interest.
00:16:31
Speaker
So for a television program, they'll have a commissioning entity and usually a distributor as well, picking up all rights around that commissioning deal. you know, let's say they've got some state grant finance from Vic Screen or someone similar, maybe Screen Australia is investing and maybe they're loaning ah the benefit of the anticipated tax rebate from Fulcrum or another third-party lender and got all the letters, everybody's interested, everyone's agreed to pay the amounts that they need.
00:17:02
Speaker
so then they're ready to close finance basically and everyone will be issuing their long-form agreement And the producer will be making sure all the requirements match and are reflected in the right documents and be exchanging drafts and letting the other financiers review and comment to the extent they have the right to review all the finance agreements.
00:17:23
Speaker
That's usually driven by the producer lawyer. So that's something that I'll usually be driving for the producer in terms of closing finance. And that can take a little while, like ideally it's only a six week process or something, but it can be quite complicated and it can take some time to work through everybody's requirements.
00:17:42
Speaker
For example, you know, let's say the broadcaster's ABC, ABC will have a hold back so the distributors can't make the program available to you know, ITV or somebody outside of Australia and that can't go to air before ABC's had its worldwide premiere and things like that. So all these things and everybody has to agree those terms. So it takes a little while to work through that process, but that's really referred to as close of finance. And when you close the finance, the producer then has the cash flow. So really once all of those finance agreements are entered into, i.e. the agreements with every contributor to the finance plan, then that's close of finance.
00:18:19
Speaker
and then the producer will be moving into production and dealing with the next thing that's consuming for them. And um another one is a quit claim.
00:18:32
Speaker
quit claim commonly only really comes up if a producer's option to book. and it will want a quick claim or the financiers will expect it has a quick claim from the publishers of the book.
00:18:45
Speaker
So the person who's written the book and enters into the agreement might just be them or it might be with the publisher. of The publisher holds some film and TV rights as well, but let's just say it's with the author of the book. They'll warrant that they have the film and TV rights and they'll say, yep, I've got all the rights to assign you. So technically a producer could just be relying on those warranties and saying, okay, it's got all the rights, that's the end of that. except it's commonplace and distributors will likely want to see it as well, that as well as relying on those warranties, a producer also gets a document from the publisher saying, yes, I confirm I've only got publishing rights. I don't have film and TV rights. And sometimes that does throw up a few things. Sometimes the publisher says, actually, I've got the first opportunity to do a tie-in publication of the book with the film. so there might be some other things that you do then need to work through with the publisher that maybe the author of the book
00:19:34
Speaker
was or wasn't fully aware of in terms of working through the option agreement. So it can throw up some new things, although usually authors are aware of what their terms are with publishers and particularly agents will kind of raise those points in working through the option agreement with the author. So the quit really is the idea of quitting rights is really i don't have rights and maybe to the extent I do, i move them over to the author or something like that. So the quit idea is like to confirm I'm quitting any rights, these particular rights. That's kind of where the concept comes from. That's the most common area that you see it. The producer might also need a quit claim if there's been prior development by another producer and that other producers ju some money or it's referenced in the chain.
00:20:17
Speaker
it might be prudent or it might be required to have a quit from a prior producer who's developed the project, who's no longer producing it.
00:20:28
Speaker
And then, Probably variations of those things or maybe if it's acquiring rights in a filmed project and it's doing a TV spinoff or something like that.
00:20:39
Speaker
There might be somebody who was involved who didn't really have a share of copyright but had some involvement and you just want to make sure that they're quitting and saying, no, I didn't have any rights in the project. So maybe it would be prudent to get a quit because they don't necessarily hold copyright but they've had some involvement And then there's versions of that if you're adapting an existing stage play, you might want to quit from the stage producer, et cetera, et cetera. So then yeah they're the areas where it's, okay, that person doesn't hold rights anymore, but they did, or they hold rights that the producer's not getting, but we just want to make sure there's no crossover and that they're aware that we get these rights and that they're saying, yeah, I've just got a different subset of rights. I've got the publication rights only. I've got the right to put it on stage only, et cetera.
00:21:22
Speaker
So they're really the areas where quick claims come up. And those are kind of some of the terms, so um we'll move into some other questions now that we've covered some of those terms. um Do legal requirements differ depending on low-budget project versus a big-budget production?
Complexities of Legal Requirements
00:21:40
Speaker
Not necessarily, which is unfortunate in a way because it can mean that a low-budget project needs to have a legal budget in it that's just kind of the same as a big budget. So the work required doesn't necessarily differ. And in fact, sometimes low budget films can be more legal work because sometimes low budget films are financed using a lot of different sources of financing.
00:22:07
Speaker
So a simpler structure of feature film finance, let's just say, would be Screen Australia, state body, offset funding, ANZROW distributor or something like that. And that doesn't mean it's straightforward. There can still be a lot to work through. and um I'm also just, I'll just flag that there was a term that you used in case people don't know what it means, which is ANZROW distributor, which is just Australian, New Zealand and rest of world distributor. Correct. Yes. But let's say a low budget in order to have got the funding, maybe it's gone out to like six different contacts of the producer, all of whom are putting in finance and might have like
00:22:45
Speaker
a lot of different private finance in it like it might have needed to get a lot of different people to put up the money for whatever reason that that's not uncommon for low budget films which then makes the financing more complicated because there's more contributors and they may be contributors that do not always invest in film projects so there might be a bit of expectation setting or there might be a little bit more to work through in order to get all those financiers on board.
00:23:16
Speaker
So a Screen Australia has worked with a lone financier like Fulcrum on many, many projects. Everybody knows each other's agreements and knows what everybody needs. But if you're working with a private financier who hasn't done a project with Fulcrum before or something, then there might be a little bit more to work through there. So yeah quite often with low budget films, there are a lot of disparate different financiers and that can be quite complicated to work through those requirements that say there's not and it's the same it really is the same set of considerations anyway because you're still having to secure a chain of title still having to do the finance agreements and move through production maybe an area where there could be a saving is the low budget film
00:24:00
Speaker
may have simplified how it's going to shoot. So it might be mainly in studio because it's needing to keep the budget down. So it's not a different location every day. It's one key location. So maybe that means there's only one location agreement or one key location agreement to do.
00:24:17
Speaker
Maybe it doesn't have a four key cast roles because the budget can't stretch to have like four A-list cast. So that means instead of negotiating four A-list cast deals that can be quite complicated and can have a lot of requirements in it,
00:24:29
Speaker
maybe you're only negotiating one. So there may be areas where it is a simpler legal structure, but I think the frustration is sometimes it's not, and sometimes those low-budget films, particularly where we've got clients who do both, the low-budget films are not less work and they're they're often more.
00:24:46
Speaker
Yeah, okay. And are there certain core considerations everyone should keep in mind regardless of that budget?
Securing Rights and Legal Support
00:24:55
Speaker
Yeah, I don't know if I've got any key, hey, if you're a film producer, regardless of budget, keep this in mind because I think a lot of them are aware of what they need to do throughout the production. I i think really the idea that you need to secure those rights into the producer entity and everyone who's contributing on set needs to confirm their copyright or the results and proceeds are moved over and everything you're seeing on screen is cleared. Like those general ideas I think are accepted.
00:25:22
Speaker
Maybe a little bit of analysis sometimes on the chain of title, maybe a few key questions at the beginning to flush out oh, okay, there was another contributor. Oh, someone's popped up and said you actually did this ah when you were at AFTRS or something like that. So you're in an informed place at that time.
00:25:38
Speaker
I think another tricky thing can be the resources for legal support at development can be somewhat limited. It's not like they have the whole project finance at that stage. So I understand the need to keep things kind of simple from a legal perspective during development.
00:25:51
Speaker
But it may be that a producer enters into, say, a kind of a deal memo letter with a financier and they don't realise they're agreeing to dispose of rights that they are or oh, it's an all rights deal, I just thought it was the tape rights. I didn't think I was getting rid of format rights as well.
00:26:07
Speaker
And some of those things can be better negotiated at a finance stage, but it can be tricky if all these development deals are signed saying, yeah, yeah, I'll subject to contract, but we'll grant you all of these rights if there hasn't been proper advice at that time. It might have just been able to reset expectations and maybe even reserve some of those rights out to the producer And I guess when you're also working in true story, just to be mindful that true stories need work, like just fictionalising somebody's name doesn't mean they're not identifiable. There's always more to work through with true stories. So just to have a think about that, I suppose, to be mindful of that as a creative when you're moving into... true crime space, there's going to be likely a bunch of additional considerations that need to be worked through.
00:26:52
Speaker
So are there any common mistakes or things that people don't consider that come to mind? The common mistakes, maybe not so much things that people don't consider, but the common mistakes, and it may also be reflective of the fact that a lot of our clients have been We deal with some new producers as well, so it's definitely not exclusive, but we do have a lot of clients who've been producing for a really long time. So probably over over time, those common mistakes have been kind of weeded out a little bit. But the common mistakes I see are probably small ones, actually, not fatally big ones, but things like missing option extensions. So you kind of look through their chain of title. They've sent you the agreements that you may or may not have been involved with, or maybe you're involved with some
00:27:38
Speaker
you did the option agreement with them and then it's two years later and they're go saying, great, I've got it financed. And you go back and say, okay, well, you had an option for 12 months. Did you extend for the next 12 months? And it will be like, oh yeah, I paid that 18 months later, but we all knew were extending by email. So then you kind of have to go back and make sure the documents reflect, okay, there was an oral agreement to extend, you know, so there's a bit of kind of patching up work to be done. So common mistake might be just not actually extending the option within the time that you were needing to extend the option.
00:28:10
Speaker
It might be really small things like you go to close finance and then you're giving the certificate of coverage of insurance to the financiers and the financiers are like, hey, I'm not on there as an additional insured and I should be. You know, again, that's not fatal. That can be fixed up pretty quickly. It might just like slightly delay a release of payment or it's a common thing that we see quite a bit is a bit of assistance on that front. They're really like smaller things.
00:28:33
Speaker
Maybe They agreed a provision that was like, you'll be able to direct on terms that we agree and then they don't agree and it's like, okay, well, you've got a pretty open-ended clause here. How do we deal with this? So it seemed to be something that was maybe okay to agree, but it actually created some contractual uncertainty in the chain.
00:28:50
Speaker
It sounds like on those instances you're referring to things that have maybe been said in person or in an email but not actually like in a proper agreement. Yeah, and and with sufficient certainty.
00:29:05
Speaker
And I get that because it makes both parties feel good if intentions are reflected. Like, oh, yeah, no, sure, like I'll engage them to direct if I can. Or like, yes, of course they can direct. And then you flesh that out. Okay. What if they're not available? What if they've got another great project? Then they want you to push for a couple of months. And then you're like, oh no, I wouldn't use them then. What if a commissioning entity doesn't approve them? So then like things like that. So just some of those considerations need to be worked through. and And it might seem at the time like, oh, you're overcomplicating this, but very often it will come up and then they'll go back and go, oh, okay. I see why.
00:29:38
Speaker
Or like this relationship soured. I thought that this was a great working relationship, but this isn't going the way that we both wanted, et cetera. So I guess things like that, like considering at that stage when you think it's fine and everybody's very happy that you're making these commitments, but are they clear? Is the expectation clear? Is it drafted with sufficient contractual certainty and the like, I guess.
00:29:59
Speaker
Music's maybe an area, like there's some areas like footage licensing and music licensing where the terms might not be ideal to start with. And so being super aware of what rights you do and don't have before you put the music in the film, before everybody gets attached to it, and in terms of what the producers warranted to the distributor in terms of clearance. Yeah. yeah With, with some you know, you mentioned music there.
00:30:21
Speaker
If someone wants to include a video game character or a song in their project, like how do they go about getting those clearances? You know, is there like a specialist that they should be talking to?
00:30:33
Speaker
Yeah. Look, sometimes I think a clearance specialist important actually it can be really good and can be a really good cut through. The general starting point is it would need to be cleared. So mainly the clearance specialist might be useful if there's a reason why a clearance is unable to be sought or the producer might not want to approach that entity to seek the clearancing because it thinks it's going to be a no answer. So it doesn't want to get a no answer because then that might bring more attention to the fact that they're then doing it and particularly if they feel there's not a legal reason why they need to get the clearance. So because E&O (Errors and Omissions) says if you've got to essentially there are some carve-outs for like non-distinctive background use of real property and things like that, so there may be some carve-out for insurance. But essentially the idea is if you've got it on screen, clear it, and if it's in the script, it needs to be cleared.
00:31:21
Speaker
So if that's all being cleared, that's fine on those terms. But if there's an area where a producer might not and and want to clear or has been unable to clear or doesn't know if she's clear or not, it might be straightforward or it might be quite nuanced and it could be good to get a clearance specialist advice because a clearance specialist is, or a pre-publication type lawyer, is dealing with it day in, day out. They're up to date with all the cases, although they'll be better up to date with all the cases than someone who's not exclusively working in that area.
00:31:52
Speaker
So it might just be a quicker and a less conservative response, really, for particular areas. Often our clients work with clearance specialists to do the review of the scripts and the cuts for errors and omissions purposes.
00:32:07
Speaker
But there's ah also plenty of entertainment law firms who do that themselves as well. So that will kind of depend on the firm and it might depend on the client. And why I think that can be good is just for the reasons that I've said. It can be quite a quick cut through and a less conservative response than someone who's working from a more generalist set of principles than someone who's doing it day to day. And so if you're ah creative and you're selling your project for the first time, what kind of terms should people be expecting or looking out for, things to be wary of, like anything like that?
00:32:42
Speaker
I think if you're creative, you're selling your idea, let's just say a producer wants to acquire rights in it, you want to work with them, Let's just use that scenario first because another scenario might be that the creative is also going to produce. So it might be a creative producer who has its own entity that you it uses for production. So that selling of the idea might be entering into a commissioning kind of a network arrangement. But let's just use the first scenario where they're the creative wants to move their rights over to producer that they like.
00:33:17
Speaker
And they're wanting to structure themselves in various ways. and And that will depend on what they want. They might want to have an involvement as a producer as well, or have an engagement where they're following that process.
00:33:31
Speaker
They may want to have really broad reaching approvals. It kind of will depend on what their idea is and what their level of involvement is requested to be Do they want to share in some receipts for the project?
00:33:43
Speaker
Do they want to guarantee a minimum fee per episode? Do they want a right to be the rider of any subsequent programs, et cetera? They would be best served to have some advice like either from an agent or a lawyer, someone who's doing those deals often and knows what the current value in the marketplace is and what terms they can get. And particularly agents who are dealing with producers all the time, they may know what they've just secured for another client from that same producer. So they may then know the areas to push. So I think it's really good to have somebody on your side who's able to give you those commercial pointers. And that can be lawyers because lawyers are looking at contracts all the time. Although, you know, technically lawyers are giving legal advice and the client's are making the call on commercial advice. Although lawyers, because they see so many deals, can give some commercial pointers. Whereas agents are advocating for the commercial points. And even though they see these agreements a lot and often...
00:34:40
Speaker
therefore helping review the legal contracts they're more on the commercial side so they're good relationships to have as a creative selling your ideas so that's kind of the commercial front and then I guess the legal front is you know are you giving an option for specific period of time before you assign the right so kind of what legal protections will you give yourself as the creative are you wanting to be part of the producing entity and That may or may not be something that the producing entity is open to doing and it does give some fiscal responsibility for the creative because it then means it's part of the company that's enter entering into the finance agreement so it can be liable as part of it's responsible for that. So if that's not really what it does day to day, it might not want to be in the driving seat and be part of the entity that has that responsibility. It might be wanting to secure its entitlements another way
00:35:33
Speaker
So that's the scenario where it's entering into a deal with a producer. if it is the producing entity and entering into a deal with a network, I mean, I guess a similar set of considerations of, you know, is it an SVOD entity that's picking up all the rights? Is it a development financier that's giving a bit of money for...
00:35:51
Speaker
a share of copyright in what's produced, et cetera. So the considerations will be slightly different depending on where that idea is getting sold, I suppose.
Advice for Creatives on Selling Projects
00:35:59
Speaker
But I guess my key pointer would be to get proper advice on it. And, you know, that's an agent or that's a lawyer or some other type of informed representative. And um so what is the difference between an option and a shopping agreement and the pros and cons of those?
Option vs. Shopping Agreements
00:36:16
Speaker
Yeah, shopping agreements, it's funny how these things go through trends. like So I remember when shopping agreements suddenly, I mean they've been around for a while, but when when that suddenly became a term that everyone wanted to use, contractually there is not necessarily a difference. I think how people think of a shopping agreement is I'm going to enter into an arrangement where the owner of the underlying work gives me the rights to talk about it and pitch it and try and get interest in it, and then once I do have interest in it,
00:36:47
Speaker
Then we'll go through the process of agreeing terms and not before because I don't want to get into this lengthy negotiation if it's not even something that I can sell as the producer.
00:36:59
Speaker
And maybe the creative likes that too because it's like, yeah, I'm not going to enter into this arrangement where you have three one-year options and then the right to acquire these works if I don't even know who's being involved yet. So both parties might think, okay, that's good, that gives us some flexibility.
00:37:16
Speaker
However, I guess to be legally binding and I guess to say the bad things about it, depending on how the shopping letter is structured, effectively it's a licence. So the producer or whoever's getting that right to shop and pitch it is getting a licence of the copyright in that underlying concept to do certain things for a certain period of time.
00:37:37
Speaker
um So the shopping letter should be clear on what that is. Like to have an exclusive licence to say that producer's the only one that can shop and pitch It needs to be in writing and it needs to be, it should be stated as an exclusive license. If somebody just verbally gave you the rights, maybe that's effective at law, but a non-exclusive. So that means there may be nothing to stop them telling somebody else that they can shop and pitch around too. So let's say you've said, yeah, I can exclusively shop it around for 12 months and I'll look, Amazon's interested. Great. Let's negotiate the deal and the individual
00:38:10
Speaker
owner of the screenplay that you've been shopping and pitching says, oh, Amazon's interested. Great. Okay. This is going to cost you this now. And I'm on all these terms. And the producers then trying to negotiate this deal and it doesn't know it can negotiate the deal. Meanwhile, Amazon's like, oh, you just pitched a project to us that you don't even have the rights in. So it's, I don't know if it's that great for either party because you're shopping and pitching something at a time that you don't have any contractual certainty about what happens if there is interest. So then you can have hybrid shopping agreements where it's like, okay, here's attached. If I do get interest during the term, here are what our negotiated terms are. And then it's looking a bit like an option and assignment anyway, and you haven't necessarily saved yourself that much time. So I would say this as a lawyer, but I just think it can be neither party has certainty on what the arrangement actually will be if there's interest in it.
00:39:03
Speaker
it can put both parties in not a great negotiation area and it can create some rights uncertainty. the Like you don't necessarily know a deal will be done at the time you've pitched it and that could be not so great for the producer's relationships to the financiers that it's pitched to.
00:39:19
Speaker
So maybe some areas shopping agreements can be useful, like maybe for engaging an executive producer to help finance a project. Can you, the executive producer, take this to market for 12 months and then that ends? Like that doesn't then You don't need any further rights to come, so that might be an area where it's good. But for the creatives in their underlying work, I would caution both sides in some ways against a shopping letter unless there's kind of some clarity over what happens if there is interest in the project. Ultimately, that's a call for both of the parties. yeah Yeah. So the shopping letter is kind of a limited right to do something and it might be uncertain as to what happens next.
00:39:57
Speaker
when those conditions are met, if that makes sense. Whereas the option and assignment deals with everything. Like here's the option, here's what I can do during the term. And if I get it financed no matter who with, I'll pay these terms and give those entitlements. So then you've got everything there. There's no further paperwork that needs to be entered into.
00:40:13
Speaker
Yeah, okay. um So that brings us to ah the final segment, which is the Pay It Forward segment. So um this is where you'll be asked a question from a previous guest and then you come up with a question for our next guest. Okay, cool. So the previous guest was Nakul Legha, the head of scripted at SBS. ah And he asked.
00:40:35
Speaker
My pay it forward question would be. What gets you up in the morning and then what keeps you going at 4pm in the afternoon? Okay, thanks, Nakul, um who I haven't spoken to for a little while.
00:40:49
Speaker
He was at ABC where I dealt with him the most and then Netflix, I think. So I yeah hope he's well. Okay, what gets me up in the morning? i have a young kid, so it's going to be a slightly boring response, which is a little toddler coming to my bed and going...
00:41:03
Speaker
Mama. I ah quite like morning routines. So I think that kind of helps set the day. If you're on a close of finance and you know there's going to be a million emails from all the UK stuff that's happened overnight, it can be tempting to like get straight into those emails and know what your day is looking like.
Personal Motivations and Podcast Wrap-Up
00:41:22
Speaker
But because I think it's healthy for everybody and I've got that kid, I think it's good to say, okay, let's make a cup of tea.
00:41:29
Speaker
Let's just sit down, enjoy the morning and have that space before you then hit the emails. Because if you look at something before you can actually go ahead and do it, it creates stress that doesn't need to be there. Whereas if you just wait until your working days actually started and you're on the computer, then generally you can deal with those things that come up with less stress.
00:41:50
Speaker
Yeah, so I guess what gets me up in the morning is a sweet little Viv's voice and cup of tea, morning headspace, I suppose. And then what gets me through at 4 o'clock? is up Yeah, what keeps you going at 4pm?
00:42:03
Speaker
Gosh, I'm sounding very like a cliched mum here, but the way I structure my days at the moment has completely changed because I do have a young toddler who's not in school yet. So again, 4 o'clock is actually getting very close to the time where I go pick him up from childcare or have a bit of a break again before I then come back online later if I need to finish what I'm doing.
00:42:25
Speaker
So in some ways, getting me through that four o'clock is getting to that time where there's a forced break. And that can be really stressful when you're in the middle of doing really urgent things and you need that time out. But actually, I've found generally that's a really good thing and it's a good reset and you can come back online, finish what you need to later.
00:42:42
Speaker
i love a sum up at the end of the day. I love going back through my emails and creating the to-do list for the following day, you know, things like that. I'm definitely not a coffee person. i do coffee in the morning, would not be doing coffees at four. I'm not a big Arvo snack person. So it's nothing enjoyable like a little treat.
00:43:00
Speaker
It's probably just knowing that break. yeah Yeah. Who would have thought those questions are somewhat difficult to answer because they're ones that we're asked often. But yeah. Oh, I love that. Well, um we'll leave it there, but thank you so much for joining me on the podcast today. well, thanks for having me.
00:43:18
Speaker
That was Eve Foreman, Principal of Macleay William, and a huge thanks to her for taking the time to chat. This episode was produced and edited by myself with logo design by Shara Parsons and music by Seb Sebotaj Gavrilovic. If you enjoyed listening, please hit that subscribe button and leave us a review. See you in a fortnight.