Entertainment Law Practicum

Today, we continue our look at the third year’s practicum course requirement with a blog post from two of our third year students, Michael Hill and Vidal Maurrasse. Last semester, Michael and Vidal were enrolled in the Entertainment Law practicum. In the course catalog, this course is described as follows:

“This course focuses on the practical elements of drafting and negotiating deals in the entertainment industry. The course will introduce students to understanding deal structures and terms, identifying issues and finding creating solutions to problems, negotiating on your client’s behalf (with an emphasis on what’s important to your client, what isn’t, and why), and drafting the necessary documents. In order to best simulate a real-world work environment, students will be involved in two deals simultaneously, one in which they represent the “talent” and one in which they represent the “corporate entity.” There will be a live, hands-on negotiation element to the course, as well as a written element intended to mirror how deals are done through drafting and revision of documents by e-mail. The instructor will also endeavor to have guest “clients” come to class to provide students with a realistic experience in addressing client needs and concerns, and giving the best advice (including advice that a client may not want to hear).”

Here are Vidal’s thoughts:

The Entertainment Law Practicum (ELP) was meant to simulate the process of producing a film—from acquiring a writer for the script, all the way to distribution in theaters and beyond.  In a regular law school class, to do this you might have to first read a book about film production to give you a general idea of the context for your further legal learning.  That further learning would then consist of reading cases that dealt with legal issues that arose out of the production of a film.  In short, you would learn just a little about the actual industry, but mostly you would learn about the way courts deal with legal issues surrounding contracts and licenses related to the production of a film—basically, you’d learn case law on contract issues.

In contrast to this more traditional approach, in ELP, we focused largely on learning about the industry. Our first few classes consisted of learning the terminology of the entertainment industry—in order to be a lawyer in the business, you have to be able to talk like one, after all.

The practicum actually required a certain level of proficiency in industry lingo—not as a simple academic exercise, but because of the nature of our work: we were doing work that actual lawyers would be doing.  In ELP that meant lots and lots of negotiating our client’s contracts with “other lawyers,” i.e. our classmates.  Instead of reading 50 pages in a case book, we had to edit and comment on a form contract that we would ultimately send to opposing counsel.

As you might guess from the above statement, the class consisted mostly of negotiations between student teams representing opposing sides of a deal.  This might sound strange at first—and it did to me—but once we got into it, I quickly realized the benefit of doing things this way.

In terms of structure, the course moved in two week increments, and over the course of two weeks we would typically do the following:  First, we would receive our team and client assignments, then we would receive a form contract from which we would work. The form contracts we received were real contracts that had actually been used in real movie deals. It really puts things in context when the contract you’re using for your client has the names of celebrities like Angelina Jolie on it.

Next, we would get together with our teammates and go through the contract, changing provisions and adding things to make the contract as favorable for our clients as possible.  We would then send this edited contract to the opposing team, and they would have a few days to review it; they would also send us a contract for a separate deal that we would also be negotiating—both sides had to send each other a contract regarding a different deal, so that everyone got a chance to advocate each “side” of the deal. We would then review the contract we received, and we would negotiate it in class the following week, with our professor chiming in to correct us or clarify practical points from time to time. Basically, we were doing exactly what a lawyer representing that person in the real world would be doing.

The class was set up so that you would always have to argue two opposing sides of a similar deal—you would represent the production company one day, but would then represent a director seeking to be hired by a different production company the next.  It was set up this way so that we always had to formulate arguments for both sides of any given negotiation. This dual-representation scenario actually made it more challenging (and more rewarding). We regularly had to create counter-arguments to the same arguments that we would use in our other negotiations. However, this is also an essential skill needed in the industry.  Being able to anticipate counter-arguments allows you to prepare for the other side’s reasons for why they should get more, and you should get less.

One of the big changes that accompanies this type of learning style is that you can’t simply argue a contract based on the contract alone.  As with any argumentation, having supporting facts is essential to making a compelling argument.  In ELP, if I wanted my actress to make $2 million instead of the $500 thousand that the other side is offering, I needed facts support why I’m asking for $2 million.  This required research into similar actresses, similar movies, and similar circumstances.  Thus, doing research into film budgets, actress salaries, and how the lives of any given celebrity will affect their success, was very important.  Without this information, you could just say “My client deserves $2 million,” but it would not mean much.

Looking at contracts that have really been used in the industry, tweaking them for your client’s interests, and arguing them, is exactly what you would be doing as an attorney working on movie deals. I think the most valuable thing I learned in this practicum was how to think like an entertainment lawyer.  Yes, I learned a lot about the industry, and I learned how to speak the language (which makes a huge difference). But most importantly for me, I was regularly in a position where I had to think of creative ways to maximize the benefit to our client, even in situations where I had little leverage. I had to think practically about my clients’ situations:  If my client was an actress, what would she want instead of just money?  Do accommodations matter?  How about traveling with her family?  There are lots of ways to “sweeten the deal” for your client that require a little out-of-the-box thinking.  Lots of people tell you that you go to law school to learn how to think, but it’s still a far cry from what really helps when you’re talking about actually practicing—learning how to create value for clients in every way possible and how to resolve their problems so that deals can go through.  This practicum did a great job of teaching me how to do this, and I know this skill will translate well to any kind of transactional work I might do.

ELP has been one of my most rewarding experiences in law school, mainly because it really embodies the spirit behind our 3L program.  A traditional law school class would teach you legal consequences and some law, but it would not teach you how to actually be a lawyer who represents someone in the Entertainment industry.  I’m not going to learn how to negotiate on behalf of my client by reading three cases about breach of contract by an actress. Learning that is great for academic exercises, but in the real world you have to be able to do what your client needs you to do: represent their interests in negotiations with the other party.

Here are Michael’s thoughts:

Imagine — instead of going to class 2–3 days a week and listening to a professor lead you through one case and then another and another for an hour and a half — getting a profile for the production company that you represent and another for a director you want to hire. From there you have two weeks to negotiate for the provisions you decide are worth pursuing. At this point, all the choices are yours to make. Basing your decisions on research, you may decide to offer a high front-end salary with few incentives. If the picture does well, then the director gets little from the success, but if it does poorly, then you already paid out a higher fee. Or you may attempt to negotiate a lower salary with large incentives based on success. In this case, if the movie does well, the director may get a larger cut. You may try to get the director to work exclusively or allow him to work on other projects simultaneously. You may get the production company more control in the editing of the picture or discuss how much credit the individual will get for his work on your project.

While our professor gave learning points during and after the negotiations, and additionally made himself available for questions at all times, the sort of choices described above were ours. As you might guess, this practicum was unusually enlightening, while at the same time being entertaining. I learned a lot about the movie industry that changed the way I watch movies. Now, I find myself always thinking about what went into their production.

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