DG Considerations for "Director Agreements"

Authors and directors have had a long-standing and often contentious relationship around the issue of directorial participation in authors’ subsidiary rights income. The DG has offered much commentary and guidance on this issue over the years, but it remains an area of concern to our members, with little having evolved in the way of standardization of terms for such arrangements, or even a commonly accepted set of criteria for when (or if) such arrangements should even be considered by authors.

So, beginning in the spring of 2011, a committee of the Dramatists Guild Council met in a series of conversations with directors at the Society of Directors and Choreographers in order to discuss the issue of director participation in authorial subsidiary rights, fueled by the belief that cooperation between our organizations could bring clarity and transparency to the subject, to the benefit of all.

The group came to realize that there was little actual data on these agreements. Hampered by working with only anecdotal information, the group put forth a joint survey of our memberships to collect facts on which we can proceed.

As a result of these discussions, a joint statement on this issue was put forth by the Guild and the SDC, as follows:

Playwright/director collaboration agreements exist, but are only suitable in rare circumstances.

The Guild has reached further conclusions, based on the discussions and the surveys and research that followed, much of which was acknowledged by the SDC committee representatives during the course of this process. Beyond the fact that such director’s agreements should be rare, they should also have other characteristics, including:

• The compensation to the director should be proportional to the actual contribution of the director to the text, independent of his or her professional status;
• They should be negotiated upfront by separate representatives, and not at the last moment;
• They should be an obligation that an author shares with the producer who has hired the director and has benefited from the director’s services;
• They should have specific objective parameters, and independent mechanisms for oversight, and not be based purely on the relative power of the parties; and
• If a director participates in an author’s future revenues from the work, he or she must waive any future claims against the author or the producers who license the work.

Before authors consider the terms of such a director’s agreement, however, authors should realize that, in the first instance, they have the right to simply say “no.” It has been confirmed by the Copyright Office and the Department of Justice in the “Urinetown” cases that there is no copyright in direction recognized by law, and that (as originally confirmed in the “Rent” case) dramaturgy is not authorship, either.

Beyond that, authors and directors both need to recognize that they are working under very different economic conditions. A director is a union member who gets health, pension, and welfare contributions and other enforceable conditions of employment, including minimum compensation terms that increase regularly as a result of collective bargaining. An author has none of these things. What an author has, instead, is ownership of the play, and the future revenues from it that may fuel his or her ability to write the next one. It may take years for an author to get another play produced (if ever), and during that period a director may have worked on a wide range of shows, sometimes simultaneously, and at various levels of development and production. So authors and directors do not come to their collaboration on equal footing.

Starting from such distinctly different positions, authors and directors must each bear the respective risks of their professions: authors, that their work may never get produced; directors, that they may invest time in a project for which they are not ultimately hired. Neither should be a guarantor of the other’s risk.

Further, both need to recognize that their collaboration may be a benefit to both. An author’s play may be improved by a director’s suggestions, and a director’s work may be assisted by the author, too… or by a designer, or an actor, for that matter. The future of the director’s career may be no less enhanced by having worked on an author’s play than an author may be advantaged by having worked with that director. It is also possible for a director to harm an author’s play, so there can be no presumption of “value-added” and, whatever the value, it flows both ways.

It should also be noted that the dramaturgical advice a director may give to an author is part of the job for which he or she has been hired by a producer. It is not a separate category of authorship for which an author owes a director additional compensation. Directors are hired to have ideas, and ideas are not “property”; authors may elect to incorporate them or not, at their sole discretion.

However, under rare circumstances, a director may make an extraordinary contribution to the text of a work that transcends “dramaturgy” and becomes an integral part of the play thereafter, beyond that required to stage the play as written.

Under the circumstances of this “extraordinary contribution” to the work, if an author feels, in his or her sole discretion and without coercion, that it would be appropriate for him or her to agree to assign some portion of the work’s future revenues to a director, the Guild offers its members the following guidance regarding such arrangements:

1. PARTICIPATION: In the event a director has made the “extraordinary contribution” described above, an author might choose to agree to match the subsidiary rights participation that is paid to the director by the producer, up to a maximum of [2.5% of 100%] of the author’s subsidiary revenues, or to otherwise agree to bear up to a [5%] participation to the director off-the-top as between the author and the producer.

a. An author might also consider a structure wherein the director vests in portions of this subsidiary rights share at various key stages of the development process of the play, through its official press opening.

2. FAILURE TO MEET CONDITION. If a director has not met the “extraordinary contribution” condition, then the director should seek any subsidiary rights participation solely from the Producer.

a. If there is disagreement as to whether a director has made such an “extraordinary contribution”, the parties might choose to employ an arbitration/mediation mechanism to resolve the issue. The DG would agree to participate in such a procedure with the SDC, if the SDC were willing, and if the parties so required and so agreed.

3. ADDITIONAL TERMS. Any director’s agreement should also acknowledge the following:

a. No “director’s agreement” should be negotiated between the parties by a common agent or representative, unless there is (i) full disclosure by the representative to the author, in writing, of the potential conflict of interest, and (ii) a waiver by the representative of any commission on any portion of the author’s revenues that may go from the author to the director. Otherwise, at the author’s request, a good faith effort should be made by the representative to be recused from the negotiations and provide adequate substitute representation for the requesting party;

b. No “director’s agreement” should be applicable for anything less than a full professional production. It should be further limited to 1st Class [or any other Tony-eligible] productions, unless an agreement for a professional non-1st Class production contains a “windfall” threshold, where the director waives any participation of the Author’s first [$100,000] of subsidiary revenues;

c. If no “director’s agreement” has been requested by a director (or director’s representative) at a reasonable time prior to first rehearsal for the first public performance of the play [e.g., 30 days], then he or she should be permitted to raise the issue again only after the show has its official press opening, and the author should be under no obligation to agree to any such arrangement at that time;

d. The director should affirm the language in the author’s contract with the producer, that the Play (including its text, title and stage directions) is the sole property of the author; and the director may not make any literary or musical contributions to the Play, nor make any changes in the text, title or stage directions of the Play, without the author’s consent, and all such contributions and changes become the author’s sole property;

e. As a condition of the agreement, the director should waive any claims against the author or any 3rd party licensees related to the use of the Play; and

f. Any attempt by the director to register for copyright any of his or her contributions (including any additional stage directions) to the Play without written approval from the author should serve to terminate the director’s right to share in any portion of the author’s share of subsidiary rights.

It should also be understood by the parties and their representatives that any recognition by an author of an extraordinary contribution by a director should not be construed as creating an entitlement for any other collaborators in the production who are hired by the producer and perform services that are customarily within the scope of their employment (e.g., actors offering ad-libbed dialogue; orchestrators and arrangers hired to create orchestrations and arrangements, etc.).

Be advised that these are the Guild’s recommendations for our members to consider when contemplating such an agreement, but adherence to any of these terms is not currently a condition of Guild membership or subject to certification. If you have any questions about this issue, please contact the Business Affairs department.