CONTRACTS IN PLAIN ENGLISH - NZ TECHO WINTER 2016 ISSUE 69
As with the careers of many people, I didn’t start off in my line of work doing what I do now – providing “transactional” advise to people in the entertainment industry. Perhaps it was the insidious effect of television, but my initial career goals were obviously influenced by characters like Perry Mason and Denny Crane and I became a practitioner of the “common law” as litigation was modestly referred to then - the common law coming from Judge’s decisions as opposed to legislation. Apart from participating in the drama of the courtroom, a few things that I learnt from litigation have proved useful in the entertainment industry. Whenever I am drafting a critical legal letter for instance, I hear the voice of a senior lawyer questioning what a Judge might make of it. Or from the adversarial nature of legal proceedings - an analysis of what the other party wants, and might get. And from cross examinations, the value of a strategic silence (accompanied by a “is that all you have to say” look copied from television dramas). It’s all part of the art of persuading another party, whether it is a Judge or in a commercial negotiation, that your client is justified and entitled to assert a position.
In cases involving contract law, my impression of the best court lawyers was their ability to cut straight to the matters at issue, and address then in clear and direct terms. Similarly with Judges – the fact that a contract might be drafted in plain English, and was simple and brief as a result, was certainly not seen as detrimental if it did what it was supposed to do. Conversely, Judges can be damning of agreements which contain enormously long clauses filled with repetition, qualifiers and one sided disclaimers. Those of you unfortunate enough to have been on the receiving end of a studio or network agreement will know what I mean.
My break from litigation came when I studied copyright and media law in London. I lucked a part-time job in a Merchant Bank in the City, and was rather surprised by the enthusiasm shown by lawyers there for drafting long and complex project financing agreements. Although the enormous amounts of money they were earning may have had something to do with it! Most of the banking agreements back then, and those I have come across since, have paid some attention to drafting in plain English, and to being formatted in a reasonably accessible manner. My boss at the bank in London was particularly enthused by a book by an American lawyer called “Contracts in Plain English”. Aside from providing the heading for this article, it’s hard not to like a legal author who comments on legal jargon in contracts like this:
“ Aforesaid : a revolting word that has little to recommend it” and
“Right but not Obligation : one of the most splendid phrases available” or
“Understanding : A dangerous word. If you mean “agreement” you ought to say so”….
For the past 25 years I have been an entertainment lawyer in Auckland, and have tried to continue the habit of translating the sometimes complex relationships of a collaborative industry into written agreements that are as simple and clear as possible. It isn’t always smooth sailing – a few years back I was asked to provide a raft of production agreements for a budget feature. I forwarded a 5 page short form actors agreement, but within a few days fielded angry calls from a number of agents telling me the agreement should be 13 pages long. It turned out that was the length of the SPADA/Equity agreement, which is now the industry standard, but at the time my response was to ask what was missing from my short form. I didn’t receive an answer to that!
On reflection, there has been an insidious expansion in the size of contracts across all sectors of the film and television industries in recent years. This is as much due to the increasing sophistication of our local industry as anything else, with producers now required to “package” productions for local and overseas funders, co-production partners, insurers and distributors. The distinguishing feature about funding film and television as opposed to most other forms of project financing is the need to document what are essentially intellectual property deals with only audio/visual footage as tangible security. But it’s not only funding deals that are more complex – we now work under of co-production treaties with partners who have different film making and contracting practices. And the proliferation of distribution platforms in this digital era has produced a bewildering variety of acronyms, territorial considerations and rights that also need to be negotiated and recorded.
Amongst all the industry shakeups and reviews, the digital convergences, and content changes; the actual roles of most crew members probably hasn’t changed much. In the mid 1990’s I helped the Guild draft standard terms and conditions for crew which it was hoped would attach to a cover sheet detailing the specific deal points for each engagement. As it transpired, no agreement as to standard terms was reached with SPADA, but I ended up with a useful template which hasn’t required much amending over the past 20 years. Over that time, the obvious drivers of change have been the need to clarify independent contractor status, ongoing issues as to work hours and work weeks, unfair termination, and more recently Health and Safety compliance.
The legal debates over the definition of independent contractor status in the past decade shows that it is not always possible to advise clients and draft contacts with absolute certainty in a fast changing field like film and television. A number of crew, particularly on repeat television series engagments, were justifiably concerned at the implications of the ThreeFootSix case when each level of appeal from the Employment Relations Authority to the Supreme Court switched Mr. Bryson’s status from independent contractor to employee and back again. It required the so-called Hobbit Law to finally establish that “film production” workers were legally regarded as a breed apart.
Even the forthcoming review of the Blue Book won’t result in certainty for crew members entering into contract negotiations, particularly with producers they have not worked with before. It is intended to provide guidelines, not standard terms. The legal effect of, and degree of reliance on, such industry guidelines might be a topic in itself for a future column, but at the very least it must be good to be able to refer to a general consensus on current working conditions in the film and television industry.