Five things Professional Creatives Need in Their Contracts

[Mark Suszko]

Indemnity is not as easy as it sounds. Just because it says on paper someone else volunteers to take the heat for you, that has nothing to do with what a court will decide. Just signing an indemnity clause puts you on the record as knowing, before the job begins, that you’re about to work on something hinky.

Indemnity clauses are something you use afterwards to try and get reimbursed by the client after you’ve been taken to the woodshed, instead of them, by a judge. And often as not, you haev an uphill fight trying to get the indemnification to stick as legitimate and enforceable.

That’s my real point; indemnifications are very hard to enforce, they mostly give the appearance of an insurance policy, but you should never stake the farm on it as your only protection.

[Craig Seeman]

I think in most cases the Indemnity clause serves as a written warning to the client that you will go after them (even though it’s obviously difficult).

Personally I’ll just tell the client what I wont accept generally and more specifically if they attempt to hand me stuff that I don’t believe they have cleared the rights to use.

The problem some of us face of course is that there are times when something completely slips through since neither party was aware that something is copyrighted. Accidents happen.

For some the indemnity clause is a warning to the client to please check first.

[Todd Terry]

The “creative control” issue is also a bit problematic.

The article’s author was saying that he prefers that clients give him creative control… that he acknowledges that the client is paying the bills and it’s their project, but he prefers when the creative control is his.

That just rarely happens in real life.

Most of our clients do more or less allow us creative control, because creativity is usually why they hired us in the first place. But we’d never presume to ask for a contract that requires it. I don’t think anyone would.

“Sorry Mr. Corporation man… I know you asked for a simple video about your new widget, but we thought it worked better as a Fellini film parody. Sorry, but remember we do have creative control. Now, where’s that check?”

It just doesn’t work that way. Creative control is not something you can insist on with a paying business client when you’re working on their project.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com

[Walter Biscardi]

For me,

Yes, you can have an indemnity clause, but quite honestly, a rights holder is going to come after the producer no matter what your contract says and they will have a good case against the Producer. If you are a professional working in the industry the very first thing you should understand are rights and the need to have clearance for anything that is used in a project. Most often the issues that arise are music and clips of previously produced material such as film and television shows. All rights and clearances are given in writing so if there is a question at all, the Production company needs to ask the client for the written clearance. So you can put that clause in there, but know that the rights holder are going to come after you and will most likely win. You have to be vigilant of your own accord.

Copyright. If you’re working for a client, in my book the client owns everything. I really don’t know where this whole idea that if you get hired by a client, do the work for the client, you somehow keep copyright control of the project. That’s unethical in my book. When you create something original and you finance it yourself, you own that.

I’ve never heard of a creative control clause. If you are hired by a client to do the work, generally you present your concept and then you work back and forth from there. That’s generally how it works. Again, you create an original concept, then generally you have full creative control. But I’ve never heard of, nor seen the need for a “creative control” clause.

Revisions – My contracts don’t include these and I’ll tell you why. How long is that revision going to take you? 2 minutes? 5 hours? 10 hours? I don’t know either. So my proposals to the clients include days / hours to complete the project that has an allowance for revisions. I know a project is going to take 36 hours of edit, so my proposal includes up to 46 hours of edit for X amount and then the client is billed Y per hour/day for every hour / day beyond the 46 hours. It’s all spelled out in the proposal so there’s no surprises, no “well you can’t have THAT revision because it’ll take too long” or “well now that’s going to put us over budget so the rate will now be Y per hour.” So now when the client asks me for something that’s going to take 12 hours to revise, I can simply say, “That’s going to push you into overtime, are you sure you want to do that or would like to try this alternative instead?”

Change of Scope – This is easily handled by making sure your contact is very specific in what is expected of you including all the services you will provide. 2 days of shooting at this location with this crew, 10 days of editing, 4 cuts of library music, client deliverable will be a DVD / QT Movie / HDCAM Master with a running time of approx. X minutes. Making the contract as specific as possible makes it very easy to show a client when a project has changed scope requiring a revision.

Walter Biscardi, Jr.
Editor, Colorist, Director, Writer, Consultant, Author, Chef.
HD Post and Production
Biscardi Creative Media

“This American Land” – our new PBS Series.

Blog Twitter Facebook

[Richard Herd]

[walter biscardi] “Copyright. If you’re working for a client, in my book the client owns everything. I really don’t know where this whole idea that if you get hired by a client, do the work for the client, you somehow keep copyright control of the project. That’s unethical in my book. When you create something original and you finance it yourself, you own that.”

Do you deliver the project file? video.fcp for example

[Damein Green]

I’m with Todd on the creative control issue. That’s like going to a burger joint and having the cook tell you what you’re going to eat.

He who controls the money controls the content. Even if it is cringe-worthy.

Damein Green
Creative Producer
@DGreenTV