THEATRICAL COLLABORATION AGREEMENTS
In most cases, a play will be written by only one playwright. However, most musicals, and a few plays, are created by collaborations between or among two or more contributors. If more than one person contributes to a theatrical work, it is important for all of the contributors to sign a collaboration agreement.
Why do the contributors need a collaboration agreement?
There are at least three reasons for having a collaboration agreement. First, a collaboration agreement may be a prerequisite to finding a producer that will be willing to produce the work. Each contribution to a musical or play is typically regarded as a separate work, and each contributor has the right to withdraw his or her contributions unless and until (merger( occurs. Upon the occurrence of merger, all of the contributions are considered to be merged into a single, integrated whole, and no contribution can subsequently be withdrawn. Merger is not automatic; it only occurs when the conditions listed in a collaboration agreement have been met. Unless a producer can be assured that merger has occurred and that the producer will be able to acquire the rights to the entire work, it is unlikely that the producer will be willing to enter into a production agreement.
Second, absent a collaboration agreement, there will be no guidelines for the relationships between or among the contributors. Specifically, the contributors will not have any written agreement as to how royalties and other proceeds from the work will be split, or as to how each contributor will be credited in connection with any production of the work. There also will not be any procedures in place for managing the licensing of production rights. Failure to commit the agreement on these important issues to writing leaves the door open for future disputes over what the agreement of the parties actually was.
Third, under copyright law, a person who only contributes a concept or an idea to a work is not entitled to claim any ownership interest in that work unless agreed to by the other contributors. Accordingly, the contributor of a concept or an idea for a play or musical will want a collaboration agreement to secure his or her rights to share in royalties and to receive credit in connection with the production of the work.
When should the contributors sign a collaboration agreement?
Ideally, the contributors will enter into a collaboration agreement either before or while the work is being prepared, or at least prior to the first public performance of the work. However, contributors to a work often do not become aware of the need for a collaboration agreement until after the work has been produced. While it is possible to wait until after the initial production of the work before entering into a collaboration agreement, there is always the risk that one or more of the contributors will then decide to withdraw his or her contributions, or that the contributors will be unable to agree on the terms of an agreement. If this happens, all the effort that went into developing the work may be lost, and the work may have to be abandoned.
Aside from merger, money and credit, what other issues should a collaboration agreement address?
If the agreement is signed before the work has been completed, the agreement should provide deadlines for each contributor(s contribution, and should specify the procedures to be followed in the event a contributor fails to deliver his or her contribution on time or decides to withdraw from the project. In addition, the agreement should recognize that even after merger has occurred, it will still be possible to license certain elements of the work separately for non-dramatic uses. For example, portions of the music or the music and lyrics may be licensed for separate public performances, or for recordings. The agreement should list the rights in a contributor(s contributions which that contributor can license separately, and should specify how the proceeds from any such licenses will be divided. Finally, the agreement should include a promise from each contributor to indemnify the other contributors in the event any of the indemnifying contributor(s contributions are found to have been copied from other sources.
Anytime more than one person contributes to a play or musical, it is essential to have all of the contributors enter into a collaboration agreement. Although the collaboration agreement is the responsibility of the contributors, a cautious producer will want to make sure that such an agreement is in place before extending an offer to produce the play or musical.