LIGHTS, CAMERA, ACTION! Arbitration in the Entertainment Industry

Article excerpt

This article discusses the players in the entertainment industry, the entertainment contracts, and the advantages of having an arbitration clause in these agreements.

Productions in the entertainment industry vary depending upon the art, the artists, the medium, the venue, the financing and the distribution and marketing of the initial and collateral products. Because no one article can address such a complex and varied industry, I provide only an overview of how the industry generally operates, a description of the types of contracts that provide the basis for its operation, and the role arbitration plays in the domestic and international adjudication of disputes that may arise.

The Setting

All programming, whether live or pre-recorded, involves many different phases including project development, packaging, pre-production, production, post-production, marketing, distribution and exhibition. Some players participate in all of these phases and others have cameo roles, depending upon the needs of the production. Many contracts define the relationship of the players to one another and to the production itself. Often they contain an arbitration clause, making arbitrators with specific knowledge of the entertainment industry a vital part of the process of resolving disputes that invariably arise. The contracts provide the setting upon which all other actions take place.

The Players

Creative Talent. The performers are the most visible of the players in any production. Talent includes actors, singers and dancers' on stage, in film,2 and in the broadcast media; and musicians' who perform live or on audio or video recordings. Creative talent includes stage, film and television directors, conductors, choreographers, music producers, directors of photography and film editors. The talents and creative energies of all of these individuals are enmeshed in the final product. While the viewer or listener is often unaware of how much talent is involved in a production because their names do not appear until the credits4 at the end of a film or television show, or appear only in printed programs at the theater, concert hall, dance or opera house, the unnamed individuals and companies contributing to the product far exceeds those identified.

Production Companies. Production companies5 take as many forms as creative minds can invent. They are often responsible for the overall production of theatrical performances (on film or live), recordings, musical events, television programs, and other forms of entertainment. The motives for creating them are often financial but, in many instances, their creators become involved solely because of their passion for the art form.

In general, many documentary filmmakers, symphonies, opera, ballet companies, and some theater companies are not-for-profit and depend upon the largess of private donors and government grants. These artistic ventures tend to be costly, so a cost-effective approach to the project is essential.

Production companies are ultimately responsible for all decisions involving their projects, some of which lead to success and others to failure. For purposes of this article, the term "production company" will be used interchangeably with the term "producer," which generally refers to the executive producer,6 the artistic director, or the general manager.7

The Distributor. The distributor is responsible for the exploitation of a product in a geographical area defined by the distribution contract. Depending on the resources available, a distributor may be responsible for worldwide, regional, national, and/or local placement of the product.

Using the film industry as a model, with necessary refinements for the distribution of products in other sectors, the distributor oversees the entire post-delivery process. This includes arranging for licensing agreements, printing of films, production of DVDs, book tie-ins and screenings. …