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Legal Eagle

Contracts

Q: Profiting from show transfers

If you create a successful fringe show which is taken up by the West End, how do you ensure that you share in the credit and profits?

A: It is not clear what is meant by the words "you create".The extent of any participation you can justifiably expect from future exploitation of the show by the other contracting party depends to a large degree on the extent of any creative and financial contribution you, yourself, expect your fringe production to make to the development and reputation of the work and its future exploitation. This in turn depends upon a whole range of other factors. These are, for example, whether you are negotiating with the author or with another producer, whether it is a new work or a revival in a new production of a work with an established reputation, whether the author is well established or unknown, whether you have just rented out your fringe theatre space or have presented the fringe production yourself, whether the West End transfer involves your stage company and/or production elements, the reputation of your fringe theatre and its proximity to the West End venue, whether your fringe production was a workshop or showcase or a tryout production, how soon after closure at your fringe theatre the transfer takes place, the length of run of the fringe production, what 'rights' the other contracting party has (he cannot give you more than he has got himself), the availability of other fringe theatres in your locality, whether you have the resources and ability yourself to engage in further major exploitation, the perceived strengths and weaknesses of the parties' respective bargaining positions, and (most importantly) the 'attitude' of the other contracting party concerned. You get the drift.

One suspects that most of the fairytale situations one hears about on the grapevine where small fringe theatre makes a fortune out of large-scale exploitation by commercial producer, stem as much, if not more, from a somewhat altruistic desire on the part of the latter to support the fringe theatre as the breeding ground and lifeblood of the industry, than from hard commercial negotiation. Obviously, commendable attitudes of that kind need to be encouraged. On the other hand, some hard-nosed producers or rights owners may turn you down flat, on the basis that all they want is a tryout at your fringe theatre, and if you are not prepared to leave it at that, they will go elsewhere to someone who is not 'looking for a piece of the action'. Clearly, you will be in a stronger bargaining position if you are going to produce or co-produce the fringe theatre production yourself for a reasonably lengthy run involving both a financial and a creative contribution to establishing the reputation and development of, perhaps, a new work by an unknown author.

From a legal viewpoint, it is not difficult to build into the contract for the initial fringe production a mechanism for future direct involvement or financial participation in specified further exploitation within a defined period and territory (e.g. the West End) within, say, 12 months after the fringe closure. However, the range of available 'springboard benefits' (my expression) is wide as well as being subject to negotiation. For example, one might have any one or more of the following, namely: option or first refusal to produce or co-produce in the West End; option to invest in the West End; 'development' royalty or fee from the West End production, or anticipated fringe 'loss' being carried forward as a development charge or investment in the West End production.

You should try to agree 'qualifying' criteria, e.g. length of fringe run or number of performances or amount of fringe box office receipts or whatever, in order to qualify you for West End (or other venue) participation within a specified period. In fact, there is a paragraph in the collective bargaining agreement between the TMA and the Writers Guild which gives a range of exclusive and separate options to an original qualifying producer, which might usefully be adapted for less appropriate but not too dissimilar circumstances.

Similar considerations apply to a billing credit in the West End production. The 'moral right' to accreditation under English law applies only to authors and film directors, but if you can negotiate a contractual credit for yourself in the West End production, the detail is not difficult to work out (e.g. "Original production by... at... theatre on..."), and can be positioned at the bottom of the programme billing page and poster in a specified size.

First published September 1997