Legal Disclaimer.
[THIS IS NOT LEGAL ADVICE, I AM NOT A LAWYER]
Lets get right into it. THIS IS REALLY COMPLICATED, so where people get got is the nuances.
What we are going to do here is try and give you some guide posts to look for. Think of it as questions to go over with your attorney. This is about strategy, and know where to look. Always have a lawyer, but know how to use that lawyer. It's on you to educate yourself.
Here's an example of complexity in legal jargon, and kind of what I mean. The phrase, "Remit to Comity" was used in a case that I consulted on (Strategy not legal advice) where a States Attorney was Asking the Federal Court to not grant a motion that would have undone a judgement already passed down by the State. That's three words and it took me a paragraph to explain it's context. Confused? Yea, myself and 3 lawyers had to look it up also. We knew what the States Attorney meant, but no one in 2 different offices had every heard of the word "Comity".
So when your sitting with your attorney ask them to explain where each of these elements are in the contract and how each one is outlined, then ask them what that means. Remember the entertainment attorney works for you no matter how nice there suit is. This is also a good metric for knowing if your going to keep working with an attorney. If they don't take the time with you, and your paying them, how do you know they are really taking the time when your not there?
For a contract to be legally binding it needs to have some basic elements:
Offer
Acceptance
Consideration
Mutuality of Obligation
Competency and Capacity
It also should name the parties in full, give contact information for each party and establish the rules for the "language" of the contract pretty early in the document.
Document Detail and length are also tells.
Non-Circumvention, Non-Disclosure Agreements [NC/NDA]
I once got an NC/NDA from a producer looking to partner on a movie that was really great story. He asked me and my then partner to sign an "standard NDA". We of course where happy to. He sent it over to us and it was over 20 pages long. As I read through it, there where elements of an Operating agreement(rules and structure for how the film would be managed) and language that literally would have bound us to doing things a certain way legally. Keep in mind, this is all before we had even read the script. The standard length of NC/NDA's is between 1 to 5 pages.
Obviously we didn't sign the contract and passed on the project.
So from 1 to 5,6,7 pages in an NC/NDA is pretty normal.
My personal rule is 2, 3 pages. The ones we have for both of my main companies are 2 pages long.
10 pages is definitely getting long. I start getting nervous if its over 5 pages and the language gets repetitive. If it's long you should read it.
Meeting strategy and When to sign something.
If someone meets with you and hands you an NC/NDA and you don't sign it and they start talking about the IP/Project/or Client that is there responsibility. Likewise if your telling sensitive information to someone who is in a position to be a risk to you or your IP and they don't sign that paper your only putting yourself at risk. It's a weird, and often awkward thing to do but most professionals I have met go to the trouble to make sure its signed.
Now, that's the general rule, you have to be the judge of this. Sometimes a little bit of IP sharing is a sign of good faith and you don't want an opportunity to disappear because you pushed contract talk too soon. Sometimes, especially when your starting out the least experienced person in the room pushes for NC/NDA's too soon. That said, in really early meetings no one will ask for one.
Two months ago I was in an Entertainment attorneys office and we sat down, THE VERY FIRST thing my partner and I did was sign an NC/NDA.
My metric for what to share before the NDA (NC/NDA is often abbreviated to just NDA) is pulled out. Is the answer to this question,
"Do the people in this conversation have the ability to sell or execute the IP I am about to discuss?"
If they do, then be careful. If they don't (you might not know that they do) still be careful.
I usually try and prep by having a LOG Line and a story synopsis ready.
Also if I have registered and copyrighted everything that I am sharing and NC/NDA is not as important at that moment.
Still get the NC/NDA, just don't go for the jugular in the first meeting.
This is an art almost and get's into elements of the negotiations which we can discuss in a later post.
As always, get a lawyer and good legal advice. Hopefully these tools help you understand a little bit more of what the lawyer is talking about. It's your job to educate yourself on how to work with your attorney.
CAUTION: In the entertainment business, lawyers love to become producers. Know how to deal with your attorney and that is the beginning of your legal defense strategy.
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