Creator Tip: Once More into the Breach! #indiefilm #producer #comicbook #filmlaw

When you have a contract with a vendor and they breach it, you don’t have to pay them, right? Not necessarily…

Breach of contract lawsuits often result from one or both parties not performing their duties under an agreement, making misrepresentations within the contract, or delivering materials that don’t meet the standards expected by one of the parties. Small claims courts are set up to help litigants resolve issues under certain financial thresholds (often less than $5000), and are set up to help litigants who don’t have the benefit of a lawyer.

Performance is the successful fulfillment of a contractual duty. If a party to a contract fails to perform his duties under that contract, he may have breached the contract. There are two main kinds of breaches: minor and material.

A minor breach occurs when the damage to the aggrieved party is, well, minor. No surprise there. In the case of a minor breach however, the contract still stands and the non-breaching party must still perform.

“EXAMPLE: A printer that is contractually obligated to deliver 1000 copies of your comic by noon delivers them at 1:00 p.m. instead. If the contract does not stipulate that ‘time is of the essence,’ the breach may be considered a minor one.”

— The Pocket Lawyer for Comic Book Creators.

Remedy for Minor Breaches

The breaching party must remedy the particular breach and compensate the aggrieved party for any damages. For a minor breach, the aggrieved party, however, is not relieved of her duties under the contract.

“EXAMPLE: In the previous scenario, the printer that was late in delivering the comics must pay any expenses resulting from the one-hour delay. However, you must still pay the printer the agreed fee (minus costs that you incurred as a result of their delay).”

— The Pocket Lawyer for Comic Book Creators.

Fortunately, there are effective ways of drafting a contract to build in safeguards against breaches and predetermined methods for working out problems before they become actionable and turn into lawsuits.

For more on drafting effective agreements in the entertainment industry, see The Pocket Lawyer for Filmmakers and The Pocket Lawyer for Comic Book Creators.

Parts of this blog been excerpted from The Pocket Lawyer for Comic Book Creators.

© 2017 Thomas A. Crowell, Esq.

Thomas A. Crowell, Esq. (tcrowell@lanesash.com) is a partner at the law firm of Lane Sash & Larrabee, LLP. He focuses his practice on intellectual property and media law.

NOT LEGAL ADVICE

Filmmaker's Tip: Can't Afford the Screenplay? Try an Option. #indiefilm #filmmaker #screenwriting #screenplay

A filmmaker who wants to make a movie using someone else’s script must buy the motion picture rights to that script in order to make the movie. However, a filmmaker won't want to buy a script unless she knows that she can get it made. After all, the filmmaker needs a little time to secure funding, interest actors, and hopefully, set up a distribution deal. But here's the rub -- the filmmaker can’t attach all those elements (financiers, talent, distributors) to the project unless she has the right to make the film from the screenplay.

This is where the option agreement comes in handy. An option agreement is a contract that gives the filmmaker the exclusive right to buy the screenplay copyright during a defined period of time for a specific amount of money. 

Optioning and Selling the Screenplay

● Under U.S. copyright law, all screenplay sales, assignments, and transfers must be in writing to effectively transfer the copyright.

● Both sides in the transaction need to be especially careful that everybody understands which rights are granted and which rights are reserved.

● What is being purchased is the copyright to the screenplay. A producer must make sure that all the screenplay’s authors and contributors sign off on the deal.

● When you negotiate the exclusive right to buy (the option), you should also negotiate the sale (the purchase agreement).

For details on the deal points in an Option/Purchase Agreement, See The Pocket Lawyer for Filmmakers.

© 2017 Thomas A. Crowell, Esq.  

Thomas A. Crowell, Esq. (tcrowell@lanesash.com) is a partner at the law firm of Lane Sash & Larrabee, LLP. He focuses his practice on intellectual property and media law.

NOT LEGAL ADVICE