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Keeping the Drama OUT of your Podcast's actor contracts

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In this episode, we’re continuing our series on the legal side of Audio Drama Podcasting, and taking a close look at Actor’s deals.


Join me, The Podcast Lawyer™ for tips, strategies and a breakdown of legal issues to watch for on Legit Podcast Pro!


You can find a good template actor’s contract on our Easy Legal Forms and Templates for Podcasters site at http://podcastlawforms.com


And, don’t forget to register now for my upcoming virtual workshop: Business & Legal Fundamentals for Podcast Growth & Profit, coming up soon.  Lock in your seat by visiting http://event.podcastlaw.net


#podcastlaw

#podcasting

#audiodrama

#actors

#contracts

#legal

Transcript
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Keeping the drama out of your podcast actors contracts.

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How to protect and keep your audio drama.

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Podcast Legal Actors Contracts edition.

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Well, there's our new quicker, shorter intro.

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I hope you like it and just try to punch things up here.

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Welcome to another episode of Legit Podcast Pro, where I share tips and

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strategies and information to help creative folks like you make your have

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your impact and achieve influence without fear or worry about the legal stuff.

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I'm your host Gordon Fire mark of the podcast lawyer, and this week we are

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continuing our series of episodes about how to protect and keep your audio drama.

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Narrative fiction or other scripted type podcast legal.

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And in this episode I'm going to be explaining the why, the what and

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the how of your actor's contract.

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But before I get started with that, I just want to invite you to my free workshop.

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Coming up.

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It's called Business and Legal Fundamentals for

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Podcast Growth and Profit.

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And listen, I only do this workshop a few times each year,

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and you don't wanna miss it.

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If you're serious about podcasting and about doing things the smart, safe,

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profitable way, join me for the next workshop coming up very soon, June 5th,

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if you're listening to this in real time.

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So register now over@event.podcastlaw.net.

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Okay, so you're doing a an audio drama kind of a podcast, and this genre is a

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bit different than many of the others where, you know, you're just having

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a host or a couple of co-hosts or, or a guest or something like that.

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When you're doing audio drama or any kind of narrative project that means

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having actors performing and then other people are involved to help out

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with the production, editing, design, directing the project, and so forth.

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And listen, I just want to emphasize how important it is to have a contract with

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each person involved in a production for reasons that I'll get into.

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Here in just a few seconds.

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So today we're talking about the actors.

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These are your frontline troops, the most visible people involved

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with the dramatic podcast, right?

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And well like the other situations where you have people on mic

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for your podcast, you need their consent for a whole bunch of things.

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To record their voice and performance, to use their name and their performance

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in connection with this dramatic show.

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And to con and their, you need their consent to edit their performances and to

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publish and distribute the performance.

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And, you know, you might think, yeah, that's all implicit when

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they show up to record, isn't it?

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Well, Not really.

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I mean, how much, how little or how long?

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What are you allowed and not allowed to do with their performances?

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Can you use it commercially?

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What if you get a TV project deal or it turns into a movie project or

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something else out of the, the podcast and implicit agreement to show up

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and record really just ends there.

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It's just so much better to get the full scope of the consents you need.

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And get them handled right up front.

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And listen, like any creative endeavor, people who are not your employees, that is

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not under contract and who create original contributions to a creative project.

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Well, things like their interpretations that the actors do, they are

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the owners of those things.

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Unless you have a contract between the actor and the producer that says

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the producer owns the results and proceeds of their efforts, you need

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that work made for hire in writing.

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Otherwise, you might not be able to do anything with the show once it's finished

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or worse, that actor comes back later and demands that it get taken down or

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they demand more money or money at all.

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There are a bunch of other possible problems and not having full ownership

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and or control of the project, well, that can be a real problem.

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So you really, really, really, Want to have a written contract.

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So what I thought I'd do now is break down a model or a template

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of an actor's contract for you.

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Now, this is from the form we have available over@podcastlawforms.com,

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and as I'm publishing this series, I'm going to have all of the forms I'm

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talking about available to you there.

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So you never have to guess what to include in your contracts.

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You can just get it from us and you'll have what you need.

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So here's what goes into an actor's contract.

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First off, there's the actual engagement.

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What are they agreeing to?

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What role are they gonna perform?

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When are they performing it?

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How many episodes is it?

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How many days of work is it?

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And what if it's a series?

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You need them to be available for multiple episodes, so you need them to promise

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that they will be you, so you don't have to recast things halfway through.

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So you want some options.

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Maybe you're doing a pilot and then there's an option for a season's worth.

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And then there's what if there's season two and three?

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What about ads?

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Are they gonna record some spots for you?

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Those kinds of things.

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What about promotional?

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All right, well look, exclusivity is another clause you need to think about,

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and that won't necessarily matter for everyone in a podcast, but you

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might want that actor to hold themself available to you and not do other.

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Competitive shows, or at least not to take other work that'll interfere with

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finishing what they need to do for you in, in a season or in a timely way.

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You also need representations and warranties.

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You want them to promise that they're free to do the show.

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They're not prevented by any other commitments from doing it, and that

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they're only gonna do original material.

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They're not gonna bring any outside stuff and.

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No hidden endorsements or paid mentions in the show.

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They can't, you know, there's, there's FCC and s e C rules about endorsements

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and, and paid ads and things like that.

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Now, the next big clause, of course, and this is the obvious

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one, is really compensation.

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After all, acting is work and actors should get paid, but I know often

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shows don't have a budget up front.

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So you need to address this.

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Somehow, are they going to get paid something later?

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When under what circumstances?

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Is it a fixed amount per episode or some kind of a profit sharing arrangement?

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You can't just ignore it and you can't just say, They're doing it for free.

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They're volunteering.

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There's, there's rules about minimum wage and things like that.

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So you really do need to address this and put it in writing,

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and I work with a lot of folks.

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I can help you figure out a good strategy.

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Sometimes it depends what state you or the actors are in and those kinds of things,

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but it is doable to find deferred or.

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Or profit sharing kinds of arrangements to, to work for these kinds of situations.

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You also need to address expenses.

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What if the actor has to travel or they need to go to a studio and

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maybe they need to stay overnight, maybe not, maybe, you know, whatever.

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Are they, are you gonna pay for meals while they're at a recording day?

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Those kinds of things are, you know, as a reimbursement or those kinds

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who, who's gonna pay for things.

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You also need the permission, as I said earlier, to use their name and

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likeness, what's allowed and what's not.

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Can you use their name in, in promotional material and ads?

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Can you put artwork together with their face on it to, to promote them and so on?

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And.

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Next is the credit.

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How are the actors going to be credited and be very specific and detailed

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about this so there are no later challenges and disputes and finger

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pointing and that kind of thing.

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And then, you know, do what you promise.

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That's what contracts are all about.

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Number nine, the, the clause that I wanna bring to your attention is the

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rights, those results and proceeds that ownership stuff I was talking about that.

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Work made for higher language that says everything they do under the

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contract belongs to you, the producer, the production that's important.

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Even if it's a, you know, a, a, a collaborative, what we call

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a company created work where everybody involved is a co-owner.

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You still need to make the company the owner of that material.

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Okay.

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And confidentiality now.

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This may not be something you've thought about, but you probably don't want your

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original storyline and plot twists and, and the drama getting out until the

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episodes go live in their sequence.

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So you want to get a confidentiality clause in your contract and it can

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be really important to, to do that.

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You also wanna make sure that you are in some control of how.

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The publicity for the show is handled so that the social media, the tweets and

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the, and the Instagrams and those kinds of things are all, you know, pre-approved by

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the production rather than people randomly shooting and, and you know, taking

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pictures and showing that kind of stuff.

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And then there's the boiler plate about notices and what happens if there's

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a dispute and those kinds of things.

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So, You really want to get this kind of contract for every person who

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is in your cast that way, even the one who's just coming in for a day

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player for a bit part or something.

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That way you'll have what we lawyers call a clean chain of title that'll allow

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you to do anything under the sun with the podcast without having to worry,

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without the distributors worrying.

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Because after all, distributors, and by that I mean the podcast hosting

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companies and the the platforms, they don't want to get sued because

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of your podcast anymore than you do.

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Now, I do wanna say a word or two about the union and working

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with professional actors.

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Now, fundamentally, all the same things apply that I was just

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saying, whether you're actors are members of SAG AFTRA or not.

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But if they are members, then you'll need to have a look at the

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agreements that that union has.

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Put out there for podcast use.

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Now, as of this moment, those contracts aren't just downloadable online.

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You have to ask the union to send them to you, but I'm led to believe

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that's going to change before too long.

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But they, here's, they have two different contracts that you should be aware of.

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One they call the independent agreement and the other is the micro

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or Micro monetized podcast agreement.

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That micro is for very small shows, things that aren't making much, much, if any,

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money under about $10,000, I believe.

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And.

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The compensation terms in these agreements are very flexible.

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You can negotiate almost anything and you negotiate it directly with the

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actor and there are no contributions to the benefit plans required.

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And so it's all, it's pretty good for the small shows, but if you are over

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that $10,000 in in revenue threshold, you can go with the independent

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podcast agreement and actually, you don't even have to be above the

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10,000 if you want to use that into.

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Agreement so you can pay benefits to the actors and those kinds of things, you

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can, benefits are actually fixed at 20% of whatever it is you're paying the actor.

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And that's also still totally negotiable.

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No minimums required.

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But the indie agreement does require that the production is housed under

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a company and L L C or a corporation.

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The union.

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Wants to know that they're dealing with a serious business, that it's

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a bonafide, legitimate podcast.

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So what if you wanna use the, the union agreements, but not all, or maybe

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none of your actors or union members?

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That's actually cool too.

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You can use the union agreements.

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In fact, these podcast agreements provide an alternative path to

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membership for actors who want to become members of the union.

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So this could actually be a really cool stepping stone for those kinds

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of folks as long as what they're doing is really a podcast meant for.

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Podcasting and not just a way to get in, but both agreements do

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require some vetting of the producer.

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The union's looking out for its members, so they're gonna verify.

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That you are really a podcast and not something that really should

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be under some other agreement.

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And they really want to know a bit about your finances and the content

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of the show and those kinds of things.

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Oh, and these contracts are meant for audio first podcasts, not full-blown

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video productions, incidental video that's not staged or heavily edited.

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That's okay.

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And.

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And exhibition of the recording sessions is, you know, if you're just having

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everybody in the room and you've got cameras pointed, that's, that's cool too.

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And you just need to do a little bit of reporting to the union when you're,

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when you're done with the the episodes.

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I think it's every, every week after or to within 10 days after recording,

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you have to file a quickie report.

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And you can find out more about all this at SAG aftra.

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Go on over to their website.

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They've got F FAQ documents on the site@sagaftra.org.

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Slash podcasts.

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So there you have it.

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Podcast actor contracts, both the union and the non-union variety.

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But I hope your takeaway here is that whether you decide to go union

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or non-union, it's really good for everyone to get clear expectations,

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rights, ownership, compensation.

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Benefits, those kinds of things laid out in a written contract before you

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invest all your time and resources and money in making your production

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because after all, you wanna be able to use it when you're done.

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Now, don't forget to register for my free virtual workshop,

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business and Legal Fundamentals for podcast growth and profit.

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It's coming up very, very soon.

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Visit event dot podcast law.net right now and register.

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And that's it for this episode.

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I'm Gordon Fire Mark, the podcast lawyer, and I will get back to you very, very

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soon again, when we'll be talking about the writer deals for scripted podcasts.

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And that's it for today.

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Take care.

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Legit Podcast Pro
Exploring Podcasting through the legal and business lens from The Podcast Lawyer™, Gordon Firemark

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Gordon Firemark

Gordon Firemark (gordonfiremark.com) has practiced media and entertainment law in Los Angeles since 1992. Widely known as The Podcast Lawyer™ (ThePodcastLawyer.com), he has spent his career helping creative industry professionals make deals that make sense, and that get their productions developed, financed, produced and distributed. His practice also covers copyrights, trademarks, business transactions, and corporate matters for clients in media and entertainment.