Directors' contract guidelines produced by The Directors Joint Industry Forum
Best practice in the engagement of freelance directors:
Recommended by the Joint Industry Forum for the use of Directors, Agents, TV Contracting Departments, Producers and Lawyers in the engagement of Directors in British Television from June 1st 2002.
1.1 As part of the Directors' Terms Agreement which came into effect on 1st July 2001 a Joint Industry Forum was established, made up of directors' and producers/broadcasters' representatives. The parties to the Forum are listed in Appendix 1.
1.2 In response to directors' concerns, it was agreed that two Working Groups of the Forum would produce joint recommendations on (a) Contractual and (b) Professional and Status issues affecting directors, to enable both sides of the industry to approach the future in a spirit of fairness, co-operation and clarity. The members of the Contracts Working Group are listed in Appendix 2.
1.3 Fees. It was also agreed as part of the Directors' Terms Agreement that an informed dialogue between directors and broadcasters/producers on fees was required, based on an adequate body of reliable statistical data. This matter will be dealt with by the Forum itself.
1.4 The broadcasters/producers have entered into an agreement with the Directors' and Producers' Rights Society (1992) Limited ("DPRS") effective from 1st July 2001 (Directors' Rights Agreement) under which the broadcasters/producers have agreed to pay to the DPRS certain monies which the DPRS has accepted responsibility for distributing to its members as payment for secondary uses. All contracts should contain a reference to this Agreement and to the fact that there is no additional entitlement to any other payment for secondary uses.
1.5 Broadcasters/producers have accepted that a fair contractual relationship between themselves and the director will lead to better outcomes for both parties. This document contains agreed guidelines of best contractual practice in such a relationship.
1.6 The Guidelines are not comprehensive, dealing primarily with issues that have proved contentious in the past, raised by both sides. They are not intended as a substitute for the individual contractual negotiations between directors (or their representatives) and broadcasters/producers, nor are they intended to have the effect of increasing the costs associated with the engagement of directors, or altering a director's usual points of reference in the management of a project. However, they do set out what has been jointly agreed between employers, directors and agents as the recommended best practice in a number of key areas, with a view to fostering mutual collaboration and business growth on an individual and corporate basis.
1.7 The Guidelines should be consulted in association with the 'Codes of Practice on Professional And Artistic Status', to be published by the Joint Industry Forum. Some issues may appear in both documents, as there are inevitable overlaps between the two areas.
1.8 The Joint Industry Forum will be responsible for reviewing the application of these Guidelines and agreeing any developments or amendments. The Guidelines have been produced as part of an ongoing process and the parties will continue to discuss certain points, for example, moral rights (where agreement is yet to be reached), which are not dealt with here.
The Guidelines refer to the contracting, pre-production, production and post-production processes. They may not be equally applicable in every single case, but reference to the Guidelines and the appropriate Code of Practice before the contract is drawn up, accompanied by full and frank discussion of as many aspects of the production as possible, will assist in the creation of agreed terms which fully and clearly reflect the intention of the parties, to the benefit of the project in question.
2. The Contracting Process, Payment
2.1 Prior to entering into a contract it is the responsibility of directors to ensure that they are capable of warranting that they can make a full assignment of copyright in the programme to the broadcaster/producer and can supply, or authorise the DPRS to supply, evidence to this effect.
2.2 In the initial stage of any project, broadcasters/producers have an equal responsibility with directors to establish and confirm that there exists a joint commitment subsequently to enter into a contractual agreement and that the commitment has been given by persons authorised to do so.
2.3 Directors' contracts should be issued in advance of the start of work, signed and returned promptly in accordance with the instructions given, and payments made on time in accordance with the provisions of the contract.
2.4 Directors should always be paid for all work they perform under an engagement with the broadcaster/producer. Attendance at initial meetings to discuss a project for which the director may or may not subsequently be engaged would not normally attract payment.
2.5 Delay in issuing a long-form contract must not delay payment.
2.6 In cases where a long-form contract will not be available for signature until after the director's engagement is due to commence, a "Deal Memo" should be used as the basis for prompt payment. Any decision to use a "Deal Memo" should be taken in the pre-contract negotiations.
This short-form agreement (e.g. a simple letter) should, as a minimum, specify the following:
1.Type and title of the programme.
2.Nature and duration of the term with Stop Date (see below).
3.Assignment of copyright.
4.The position relating to moral rights.
5.Remuneration and expenses.
6.Whether the director is engaged as the principal director, and/or as the sole director.
All of these items should also appear in the full contract.
2.7 Where preparatory work is required of a director without commitment by the employer to a full contract (e.g. where a project requires a director's input but is not yet 'green lit') openness is essential on both sides. The use of a simple "Development Contract" is recommended to clarify matters. Alternatively, appropriate development terms should be incorporated in the director's full contract. It should be stated as a provision in the "Development Contract", or in the development terms, whether the director is to be offered first refusal to direct the project.
Single Nominated Producer
2.8 Every contract should include reference to a single nominated producer to represent the producer/broadcaster and all production partners. This will help to streamline the decision-making process at times of pressure or contention, when it can be complicated by multiple points of view.
2.9 Contracts should specify the name of a senior person within the management of the engaging company to whom the director may appeal in confidence should disagreements or misunderstandings arise during the project.
"First class director"
2.10 The broadcasters/producers propose to end the use of this phrase in contractual documents.
3. Duration (Term) of Contract
3.1 The duration and nature of the availability required of the director throughout a project, including post-production, should be agreed as far as possible at the outset and clearly reflected in the terms of the contract and/or "Deal Memo".
3.2 Availability should be defined in terms of "Exclusive" and "Non Exclusive" periods. (For example, the shooting period would be "Exclusive", as would most of the preparation and the post production up to delivery of the Director's Cut. Pre-preparation and dubbing and scoring might be "Non Exclusive".) "Non Exclusive" periods may be further defined in terms of "First Call" and "Second Call" or any other wording.
3.3 The producers/broadcasters recognise that freelance directors must have the right to accept engagements subsequent to their particular contract term.
3.4 Directors and agents may request the inclusion of a Stop Date in the director's contract although this is not generally the custom in the Television Industry.
3.5 Any situations involving overruns will be dealt with fairly and any loss of work/income by a director will be addressed through individual negotiation. In particular, the director will not be expected or required to work on unpaid.
3.6 Absence of a Stop Date in a contract will not be used by the producers/ broadcasters as an excuse for:
2.failure to make decisions in a timely fashion;
3.not paying directors for working beyond the initial term of their engagement.
3.7 Prior to entering into a contract for one project which will or might run simultaneously with another pre-existing contract the director should fully disclose the nature of any potentially conflicting commitments to the broadcaster/producer.
4. Working Hours
4.1 Prior to accepting an engagement a director should be made aware of and given an opportunity to discuss the proposed production schedule.
4.2 No director may be required to work hours that are injurious to their or others' health or safety.
4.3 Early discussion of the feasibility of production and post production schedules, and in some cases the relevant elements of the budget is essential before a contract is signed, with the director being given the opportunity to raise any concerns.
5. Time Off/Holiday
5.1 Provisions for holiday should be in accordance with the principles of the Working Time Regulations.
5.2 Entitlement to time off/holiday, and arrangements for a director to take time off/holiday, should be agreed at the outset of an engagement and included in the contract and "Deal Memo" (if applicable).
5.3 The reality of the production process means that a director is unlikely to be able to take time off/holiday during production itself, in which case it may need to be structured into the periods of pre- and/or post-production. Periods of agreed holiday must be observed but during them directors will be kept informed of exceptional operational developments.
5.4 Where a director is unable to take time off/holiday entitlement at a time agreed with the engaging company, payment should be made in lieu.
6.1 The broadcasters/producers have acknowledged in the Directors' Terms Agreement (Appendix C) that: "Suspension is an issue best dealt with on a practical as opposed to a contractual basis? There should not therefore normally need to be a suspension clause in directors' contracts." Force majeure is the only exception to this. Any potential loss of work/income by a director should be addressed through individual negotiation.
7. Termination, Breach of Contract
7.1 Once a programme is "green-lit" and the director engaged unconditionally for the full term of the project, termination without compensation should only take place if the director is in breach of contract and subject always to 8.1 below. Otherwise subject to 7.3 below payment terms for the contract should be honoured in full.
7.2 Any breach of contract clauses must be fair and genuine. Artistic differences are not a breach of contract or a valid reason for termination without compensation.
7.3 Where termination arises and payment under the contract is being discussed, the normal duty to mitigate loss will be taken into account, e.g. any reasonable offer of an alternative engagement.
8. Force Majeure
8.1 Individual contracts may contain specific force majeure provisions.
9.1 The director will be credited on each programme for which the director is engaged. A director should normally be granted a credit in prime position, either last in an opening credit sequence or first or last in a concluding credit sequence. Any proposed variation of these guidelines (e.g. where the director has only directed a segment; or, where the producer or executive producer proposes
9.2 The director should retain the ability to require the broadcaster/producer not to display their credit. Any potential difficulties in giving effect to this should be made clear by the engaging company in contract negotiations.
10.1 The director would normally be required to indemnify a broadcaster/producer against a liability arising from any breach by the director of their warranties. The broadcaster/producer would normally be required to indemnify a director against a liability arising from materials supplied by the broadcaster/producer to the director.
10.2 The director should not be obliged to indemnify a broadcaster/producer against any so-called "threatened breach".
11.1 The expenses guidelines operated by the engaging company should provide for directors to be reimbursed for expenses actually incurred including those associated with travelling and living away from base. A director and/or their agent shall not be precluded from raising other expenses issues in contract negotiations including the issue of living away from home.
11.2 Claims must be submitted by the director and settled by the company within reasonable periods and these might be specified in the contract by agreement.
11.3 Where reference is made in the "Deal Memo" and/or contract to a company's "Expenses Guidelines", these should be supplied to the director at the time, or information given about how to consult them. If expenses provisions are to be varied from the above general principles, alternative ways of meeting expenses should be identified and agreed in the contractual discussions and included in the contract.
12.1 The director should not be required to work within a budget with which the director is not familiar.
12.2 In normal circumstances, a director would not have responsibility for setting a budget but must have the opportunity to become familiar with the elements of the budget which will affect them.
12.3 The extent, if any, to which a director is accountable for budgetary control should be a matter of specific discussion and agreement.
Parties to the All Industry Directors' Forum
Directors' Representative Organisations:
Broadcasting, Entertainment, Cinematograph and Theatre Union (BECTU)
Directors' and Producers' Rights Society (1992) Limited (DPRS)
The Directors Guild of Great Britain (DGGB)
The Personal Managers' Association (PMA)
The British Broadcasting Corporation (BBC)
British Sky Broadcasting Limited (BSkyB)
Channel Four Television Corporation (C4)
Channel 5 Broadcasting Limited (C5)
ITV Network Limited (ITV)
Producers' Alliance for Cinema and Television (PACT)
Sianel Pedwar Cymru (S4C)
Teledwyr Annibynnol Cymru (TAC)
Members of the Contracts Working Group
Piers Haggard, Co-chair (DGGB)
Tom Bell (BECTU)
Marc Berlin (PMA)
John Dower (BECTU)
Royston Mayoh (BECTU)
Malcolm Moore (DGGB)
Pennant Roberts (DPRS)
Filip Cieslik, Co-chair (ITV)
Richard Ager (C5)
Ian Critchley (BBC)
Julian Dexter (Sky)
Gwenda Griffith (TAC)
Sara Griffiths (S4C)
David Leach (PACT)
Kate Little (PIRS)
Kathryn Williams (C4)
Rob Kirkham, Secretary to the Working Group (BBC)
Last updated: 30 June 2002