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Drafting Film Production Compensation Clauses In Light of State Tax Credit Requirements
Entertainment industry contracts often cover a variety of issues: services to be performed, rights granted, representations and warranties, travel and expense arrangements and compensation (both fixed and contingent), among other matters. In many cases, the compensation provisions are in one or two subparagraphs. To simplify drafting and to use “plain English,” the compensation provisions often contain introductory, governing language along the lines of: “In full and complete consideration for entering into and performing all of the terms hereof.” However, is such a “plain English” approach always a “best practice”?
Not necessarily. Drafters of contracts for a film project must consider the agreements in the larger context of other considerations relevant to the project. If state production tax incentives are part of the financing plan, an attorney for the producers needs to review the current requirements of the applicable tax incentive program before drafting agreements with creative contributors: What types of production expenditures qualify for the credit? Are there caps on particular expenses? Does the company applying for the credit need to be organized in the jurisdiction offering the credit or is authority to do business sufficient? What are the requirements of the state with respect to the selection of an auditor who will submit a cost report to obtain the credit, and does the state supply a list of pre-approved auditors for cost report submissions? Will using a pre-approved auditor expedite receiving the credit? (This consideration is important if the finance plan involves banking the expected credit with a due date for repayment of the loan.)
The Memphis Example
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