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What Items Should Appear In A Personal Services Contract?
An entertainment attorney will opine that personal services agreements in New York, California or elsewhere can be fairly complex in regard to the issues that they present – yes, even if the total compensation payable under the contract is not too large. It would be beyond the scope of this article to set forth an exhaustive list of issues for the entertainment attorney to spot in any New York or other personal services contract. But some of the key issues for talent, in a personal services agreement in the entertainment world, are considered to be:
A. Compensation: The first talent-side entertainment attorney contract concern.
How much will one be paid, and how will one be paid, under the contract?
B. Credit. The second talent-side entertainment attorney contract concern.
What credit, if any, will one get for one’s work, and in what manner, pursuant to the agreement?
C. Term. The third talent-side entertainment attorney contract concern.
This is a critical point: For how long will one be required to render services under the contract?
D. Territory. The fourth talent-side entertainment attorney contract concern.
In what country/city/state/territory is one required to render services pursuant to the agreement?
E. Media. The fifth talent-side entertainment attorney contract concern.
In what specific media can, and can’t, one’s work product be used according to the contract?
F. (Non)Exclusivity. The sixth talent-side entertainment attorney contract concern.
Is the artist exclusive to the hiring party; or alternatively, can the artist work elsewhere and/or in other ways during the Term of the agreement?
G. Worker Status. The seventh talent-side entertainment attorney contract concern.
Is the worker an employee, or an independent contractor, under the contract (choose only one answer!)
There are actually quite a number of other issues for an entertainment attorney, or the intended signatory client, to consider, in the context of personal services contracts, in addition. The above list will certainly start the contractual dialogue or respond to the contractual dialogue of any prospective hiring party, however.
What Should Be Avoided In A Personal Services Contract?
Again, it would be beyond the scope of this article to set forth an exhaustive list of all contractual traps for the entertainment attorney to avoid in such agreements, as a matter of New York law or otherwise. Indeed, there are probably at least as many contractual traps, as there are New York and Los Angeles in-house entertainment lawyers working at these hiring corporations! (and I say this with all due respect to my friends who work in-house, of course). But some of the more colossal mistakes that an artist could make in a personal service contract, typically without first consulting an entertainment attorney, might be as follows:
A. Back-End: Taking the entirety of one’s compensation under the agreement, as contingent or “back-end”. This Hollywood hustle is just as familiar a phenomenon in New York City’s TriBeCa and elsewhere, as well. The fact of the matter is, if the artist is a professional, or if the artist otherwise values his or her own skills and time, then the artist’s work product is valuable and should be recognized as such under the contract. The “buyer” of services and work product under the contract should be required to put at least some earnest money on the barrel, first – whether that barrel be located in New York or anywhere else. One of the entertainment attorney’s functions should be to make this happen. And, the artist should not be expected to commence services under the agreement until those numbers first show up in the artist’s bank account, whatever the numbers are negotiated to be, by and between the entertainment attorneys on either side of the contract.
B. Vagueness: Leaving the Term, Territory, Media and Exclusivity provisions vague in the contract. Artists have found their careers paralyzed for huge amounts of time, due to contractual mistakes like this. No non-lawyer should try to write or edit these personal services agreement clauses on his or her own, and the drafter and/or editor of the contract really should be an entertainment attorney solely representing the artist. No one should blindly sign on to these contractual clauses as offered, particularly if they are vague. (In other words, don’t try this at home. Get professional help from an entertainment attorney, period). For example, if the artist only intended to bind himself or herself to a manager exclusively for New York work alone, imagine her surprise when the manager seeks a commission for a Los Angeles gig that the artist booked on the artist’s own.
C. Forever: Failing to limit the Term of the contract to a reasonable and precise period of time. “Perpetuity”, if ever agreed to, is guaranteed to become one’s own private Hell – sort of like a New York City subway tunnel at 3:00 AM, but worse. The contractual Hell would be forever, and after all, the entertainment attorney may not live to see the artist through a period of time that long. Leaving the Term quantitatively vague in a personal services agreement is just about as bad a mistake as calling it “Perpetuity”, and an entertainment lawyer should prevent an artist from making this contractual mistake. Life is too short and valuable to make open-ended and blank-check commitments to people – in contracts, or otherwise.
How Can A New York Entertainment Attorney Tell If A Personal Services Contract Is One-Sided In The Hiring Party’s Favor?
The answer is, if the hiring party furnished the personal services agreement to an artist, then the contract is one-sided in the hiring party’s favor! That was a rhetorical question. And the ability to answer it is not really limited to New York entertainment lawyers alone.
The hiring party is under no obligation to protect the artist’s interests in a legal document. If upon receipt of the intended contractual document, you snooze, then you lose. One’s entertainment attorney is one’s hope for re-calibrating the scales of justice evenly, in this type of proposed contract and in this type of fact-pattern. The New York courts might even look to whether both sides of the contract were represented by counsel at the time of signing, before upholding the contract or any of its specific clauses. Retaining entertainment lawyer counsel could have multiple and long-term benefits throughout the life of the contract.
And many entertainment lawyers can speak to this phenomenon from their own “personal” experience. Many of us entertainment attorneys, in New York and elsewhere, have drafted, edited, negotiated, and reviewed hundreds or even thousands of contracts. Many of these were personal service agreements. If polled, few New York or other entertainment lawyers can remember even one contract first offered by a hiring party to any talent clients, that was ever fair.
There is a reason why many New York and other entertainment attorneys and others in the entertainment industry refer to the first-offered agreement form, as the (euphemism) “F.U. Form”. Once an artist retains entertainment lawyer counsel to represent the artist on the contract, one of that entertainment attorney’s first functions is:
A. To get the hiring party to cough up a real personal services contract form in lieu of the “F.U. Form”; if not
B. Take over the drafting of the personal services agreement, entirely.
And yes, signing any entertainment industry proposed agreement, either: (I) on-the-spot, or (ii) in the version exactly as first offered for signature with no contractual edits made, without an entertainment attorney advising you, often turns out to be a mistake.
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