Tips on Negotiating Deals with Business Affairs Executives in TV and Film

By: Tifanie Jodeh
 We have all had interactions with in-house business affairs executives, or what we call “BA”.  Most business affairs executives are lawyers, but some are not.  You are at the mercy of their work overload, pressure to get deals done, dealing with many of us outside counsel and producers who range in experience from novice to overly exuberant in their negotiation tactics and deal flow.  In order to avoid being completely “zoned out” by BA or putting yourself at risk in getting an immediate “NO!” to a requested deal point, you have to understand how and when to work one issue over another.

A BA executive, more often than not, doesn’t care about practicing law.  Instead, a BA executive is usually more interested in making a deal and letting legal affairs deal with the heavy lifting of legal contract drafting nuts and bolts.  BA executives have the ability to make business decisions, according to company policy, with the mission of getting the best deal they can for their employer.  However, know that sometimes the best deal isn’t as important as getting a deal done to the BA executive.  So, tip # 1- navigate and move according to the BA executive’s time preference in working a deal, or, in other words, how he/she likes doing things and moving to the “beat of their own drum”, not yours (so to say).  I do not to mean this to imply for you to lay down and not negotiate vigorously on behalf of yourself or your client.  I’m simply suggesting to know that you are playing as a visiting team in the BA’s home stadium. 

Tip # 2- I have found it very successful to call and introduce myself to the BA executive on the outset of the deal (if I don’t know them already).  This sets a friendly, professional and constructive relationship to begin the deal making process.  I have received several compliments from BA executives when applying this method.  Most of the time, the BA executive is simply given a directive from their employer to get a deal done within certain parameters.  Our jobs, as talent/producer/EP representatives, is to push the parameters while not breaking the deal or creating an unhealthy rapport with the BA executive.  

Tip #3- Getting to a “YES” is based on maintaining an open door communication with the BA executive, being responsive and available on the BA’s timeline and managing the BA’s expectations in a way to better gain support to benefit your client. 

Here are some examples of what terms will be negotiated with the BA executive:

- Fixed Compensation, including upfront fees and options fees.
- Deferred Compensation, including a statement about whether anyone else is eligible to receive the same. 
- Backend Compensation, including how that is defined and how it is paid.  Be sure to find out if there is a CAMA.  
- Term of Services.  This may be number of days an artist/producer will be on set to how many seasons a producer/executive producer will be locked for a television series. 
- Credit, including placement, how many episodes, paid advertising and treatment.
- Creative/Business controls.
- Attachments.  Are there any other persons to be attached to the project or is your client serving more than one position (i.e. client will serve as writer and producer)?
- Renewals of options (TV/New Media).
- Spinoff/Derivative Rights.
- Reversion.  What happens to the project if it’s never produced? 

Other Consideration to the Deal:  With regard to compensation, when negotiating with BA, you should have the following pieces of information at hand, which may give you more leverage when negotiating for your client: 
- Prior quotes.
- Credits.
- Success of past projects. 
- Control.  Creative vs. Business. 
- Timeframe. Consider the timing of your deal vs. television pilots selling time period almost over.
- Leverage of the artist’s representation and/or the relationship between the talent and the producers.
- Be creative in negotiating several different ways to get compensation.  The types of compensation that are available include up-front monies, such as salaries; use fees, including a series sales bonus, pick up bonuses, use fees, options, royalties, or residuals; and back-end payments, such as contingent compensation.  

Tip #4- Back end participation (sometimes referred to a contingent compensation) can mean nothing or as much as hitting the lotto.  Some of the most heated negotiations I have been involved in surround defining “Net Proceeds”; be sure to be diligent in clarifying how that definition will apply to my client.  

Once you are done with the BA executive, you will most likely then be pawned off to the next department, which is Legal Affairs.  There, you will be working with another person, most likely an attorney at the company, where you will get into the long form contractual negotiations.  Long form contracts are an entirely different subject and will be covered in a future article. 

COPYRIGHT & DISCLAIMER
Tifanie Jodeh is Partner at Entertainment Law Partners dedicated to corporate, business and entertainment affairs.  You may contact her at Asst@entlawpartners.com.

Tifanie Jodeh grants column recipients permission to copy and distribute this column and distribute it free of charge, provided that copies are distributed for educational and non-profit use, no changes or revisions are made, all copies clearly attribute the article to its author and include its copyright notice.
DISCLAIMER: Readers should consult with a lawyer before solely relying on any information contained herein.