When the final contract to the most expensive film ever made, Titanic, was finally drafted, it easily dwarfed the script, complete with stage directions, by several times. Chances are, you will never need to draft a contact of that magnitude, but contract drafting can still be a challenging field even for the most accomplished entertainment lawyer. Here are a few tips you can keep in mind if you are even saddled with the daunting challenge of drawing up an entertainment contract.
It may sound a bit bizarre, but writing clearly is probably the most important part of drafting a good contract. To the average person, a contract is practically unreadable thanks to the prevalence of “lawyer-speak” that dominates most official documents, but by using such language, a contract becomes legally binding and very difficult to challenge in court. As any experienced entertainment lawyer can tell you, it is close to impossible to draft an iron clad contract without a vast knowledge of legalese so it is a good idea to not ever give this a try.
Another major challenge facing those that wish to draft an entertainment contract is completeness. Being able to think of every eventuality, every circumstance and every possible turn of events as it regards to your client may seem impossible, but that is literally what is being asked of you. There are general clauses that can be added in to protect your client’s best interests should a circumstance arise that isn’t explicitly spelled out in the contract but these are often easily challenged in a court of law. To help contract drafters cover all necessary bases, they often times use preexisting contracts as general templates to ensure that everything is included. Of course, you don’t want to copy another contract word for word, but you can itemize the various categories and areas that a respected existing contract covers and then make sure that your contract covers the same things.
Working hand in hand with the previous point, make sure you sit with your client and go over every possible way in which your particular situation is unique. Using a preexisting contract as a guide can be very beneficial, but it can also handcuff you in the end because, after all, that contract was written expressly for someone else, not your client. The whole reason why you are writing a contact from scratch is because your client has unique needs and attributes that no one else has. Make sure you cover your bases with a preexisting contact, but the need to personalize your contract so that it accurately reflects your client is just as important.
Finally, it is important for anyone looking to draft a contract to realize that there will often be a negotiation process once your first draft is received. That means that you write in a degree of wiggle room and flexibility into every contract. Of course, you don’t want to make absurd demands since that pollutes a good faith negotiation, but don’t completely show your hand with your first draft, either.