How to Draft a Broadcast Contract

Three Parts:Negotiating Your AgreementPutting Your Agreement in WritingEntering the Agreement

If you've created an independent television show, or even a podcast, and want to build a larger audience, you may want to enter into a broadcast agreement with an established broadcast company to distribute your creation more widely. At its heart, a broadcast agreement is a license to distribute your intellectual property. Under copyright laws, this is an exclusive right you possess as the creator, and anyone else who wants to distribute your property must enter into a license agreement with you. You can draft a broadcast contract fairly simply using plain language that will have just as much legal effect as a complex agreement created by an attorney.[1]

Part 1
Negotiating Your Agreement

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    Get a feel for the company's standard agreement. Many broadcast companies, particularly if they are well-established, will have a standard contract they use in most situations.[2]
    • Don't think that just because the company already has a standard agreement, that means you can't suggest changes or refuse clauses that don't fit your needs.
    • Companies do recognize that these contracts are not one-size-fits-all, and will require adjustment to fit each situation appropriately.
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    Determine what material will be covered by the agreement. You and the broadcast company must agree on the length of your show and how often it will be aired. This may include restrictions regarding the content of your show.[3][4][5]
    • In most cases, you retain the rights to your intellectual property – you are simply providing the broadcast company with permission to disseminate it to an audience.
    • Your material may include copyrights and trademarks. If you have a trademarked name, phrase, logo, or other image, you must separately mention it and provide a license to the broadcast company to use your trademarks in conjunction with your show, such as in station advertisements.
    • If you have questions or concerns about your intellectual property rights, you may want to consult an experienced intellectual property attorney for advice.
    • The broadcast company may want your finished show delivered in a particular format. If so, this should be negotiated and included in your contract. If you have to buy software or upgrade existing technology to render your show in that format, you may want to try to negotiate to have your payments increased to accommodate this investment.
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    Outline the basic scope and terms of the agreement. A licensing agreement assigns limited use of your intellectual property. In the case of a broadcast agreement, you are allowing the broadcaster to distribute your property in a specific way, through specific channels.[6][7][8]
    • For example, you may want to enter into a broadcast contract with a company that owns several different radio stations. However, your show will only be broadcast on specific channels, or to specific markets or geographic areas.
    • Many of these terms will be defined by the broadcast company by necessity. The company doesn't have unlimited resources, and has a set slot your show will occupy.
    • One of the key points of negotiation concerns whether the broadcasting contract is exclusive or non-exclusive. With an exclusive deal, the broadcast company has all rights to broadcast your show and no one else can broadcast it.
    • You can expect to get more money for an exclusive deal. However, you may prefer a non-exclusive contract if you want more flexibility, or if you're just starting out. For example, if this is your first broadcast contract and the company only broadcasts to a limited geographic area, a non-exclusive agreement would enable you to negotiate with broadcasters who had a wider range or who broadcast in other areas.
    • You may want to negotiate fees or other compensation if the broadcast company is unable to air your show, such as if your show is pre-empted by breaking news.
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    Discuss the agreement's duration. A broadcast contract can last for a specific period of time, or its duration may be tied to the number of shows you deliver to the broadcaster. You also must determine how the agreement can be terminated.[9][10]
    • For example, you may negotiate 14 episodes of your show to air weekly. This would mean your contract could last 3.5 months; however, tying the duration of the contract to the number of episodes allows for some flexibility with programming and scheduling.
    • Typically broadcast contracts allow either party to terminate the agreement at any time with a certain amount of notice, such as 30 days or two weeks. As the producer, you want as much advance notice as possible if the broadcast company wants to terminate the contract, so you don't put work into new episodes without a broadcaster.
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    Decide how and when payments will be made. The revenue stream generated by your broadcast contract is perhaps the key component of the agreement. Payment may either be in the form of a single license payment for the entire contract, or in the form of royalties made in periodic payments.[11][12][13]
    • The structure of your payments will differ depending on whether the broadcast company is paying you royalties (based on a percentage viewership and advertising revenue) or a flat fee per show produced.
    • If you're getting paid a flat fee, you probably also want to negotiate a "kill fee," under which the broadcast company agrees to pay you a lesser amount if you've done significant work on a show that is never aired, or that is cancelled for whatever reason.
    • If you're being paid royalties based on the broadcast company's income from airing your show, you should negotiate the ability to audit the company's books periodically to ensure the company's payments are accurate.

Part 2
Putting Your Agreement in Writing

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    Format your document. There are many different acceptable formats for contracts, but generally speaking, you want to organize it as an outline, with numbered paragraphs that correspond to specific subjects.[14][15]
    • Organizing the contract in this way will ensure that each of you can quickly find sections if needed for reference later, without having to read through the whole contract.
    • You can search online for samples or standard form contracts that you can use as a guide to format your own broadcast contract. However, keep in mind that you shouldn't just copy language from other licensing agreements without an understanding of what it means and whether it applies to your situation.
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    Identify the parties and purpose of the agreement. A basic broadcast contract starts by stating the names of the two parties making the contract, and why the contract is being made. Typically you'll assign title roles (such as "Broadcaster" or "Programmer" and "Producer") that will be used to refer to the parties throughout the agreement.[16][17][18]
    • The introductory paragraph of your contract also includes the date the agreement was made. If the date the agreement becomes affective differs from the date the agreement is signed, you can state this in the same paragraph.
    • For example, you might write: "This broadcasting agreement, dated March 18, 2016, effective as of April 1, 2016, is made and entered into by and between Sally Showmaker ("Producer"), who resides at 401 Main Street, Anytown, Anystate, and Airwaves Broadcasting Corp. ("Broadcaster"), a Delaware corporation with its principal office at 700 Corporate Blvd., Anytown, Anystate."
    • The second paragraph of your contract typically contains standard legal language that can be copied from any contract you're using as a guide. This language states that the parties have made mutual promises and consideration has been exchanged and acknowledged, which are basic requirements for a contract to be enforceable under the law.
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    Define any key words that have a specific meaning. A large part of contract interpretation involves determining whether something is included in the definition of words used. You can control the interpretation of your contract by writing definitions for important words that will apply when those words are used in your contract.[19]
    • Contract definitions are especially important if you're using the word in a way that differs, or has a narrower meaning, than the commonly understood meaning of the word.
    • Definitions also can allow you to use specific words to stand in place of longer identifiers. For example, if the broadcast company owns several radio stations, and your show will be broadcast on one of them, you can identify the call letters and frequency of that particular station once, and define the word "station" to mean that particular station as used throughout your contract.
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    Outline the terms of the agreement. The bulk of your contract will be devoted to terms and conditions, including when your show will be broadcast, the channels over which it will be broadcast, and the rights of each party regarding the content that will be broadcast.[20][21][22][23]
    • Depending on the content that is being licensed, you may want to include a separate document, or appendix, that outlines programming details, standards, and formats required so the show will be broadcast-ready.
    • The benefit of an appendix is that the contract can simply refer to the appendix, which can be independently adjusted to reflect any changes in personnel, technology, or other requirements without necessitating an entire new contract.
    • Your terms will include details about the ownership of your intellectual property, as well as the specific rights you are assigning to the broadcast company. Generally this includes a limited right to distribute your show across specified channels.
    • You also will want to specify whether the license to broadcast your material is exclusive or non-exclusive. If it is non-exclusive, you can sell the right to broadcast your show to other broadcast companies. Broadcast companies typically will pay more money for exclusive contracts.
    • You can look at samples of other broadcast contracts to get an idea of how to write the terms and conditions of your contract, and you may want to consult an attorney.
    • However, particular legal language isn't necessarily required as long as you state the roles and responsibilities of each party in clear and concise terms.
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    Provide a payment schedule. If you and the broadcaster have agreed to periodic royalty payments, the contract should include a basic schedule of when and how these payments will be made, as well as provisions for accounting and regular audits so you can ensure that you're getting paid the total amount to which you're entitled.[24][25]
    • How your payment schedule is structured depends on when the payments themselves will be made. If you're receiving periodic royalties, you can create a calendar schedule.
    • However, specific dates may not be possible if payment is due within a set period of time after each show is delivered, or after it airs. This payment schedule is more common if you're receiving a flat rate per show.
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    Specify the agreement's duration. One section of your contract must specify when the contract relationship begins, how long it will last, and the circumstances under which either party may terminate the contract.[26]
    • The section of your contract where you write the duration of your agreement is a good place to include how the contract may be terminated, including notice to each party and the conditions that must be met, if applicable.
    • Make sure you include the type of notice that must be given to the other party if one party wants to terminate the agreement, whether written or oral, and how far in advance that notice must be given.
    • For example, you might write "Either party may terminate this agreement with 30 days written notice."
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    Include standard provisions. Every contract includes standard provisions, also called "boilerplate," which establish how breach of contract disputes will be resolved, what state's law governs the contract, and the scope of each party's liability to the other for various damages in the event of a dispute or other problem performing under the contract.[27]
    • Many of these provisions can be lifted nearly verbatim from any samples or templates you found, but be careful to read all clauses before you copy them and make sure you understand the meaning of the clause and agree with it.
    • One such boilerplate clause is a "force majeure" clause, which describes what will happen with the agreement if some devastating event occurs that is unpredictable, unpreventable, and completely outside the control of either party, such as an earthquake or a tornado. Typically in such a situation, both parties are relieved of any continuing obligation under the contract.
    • Other boilerplate provisions detail which state's law should be used to interpret the contract and where any breach of contract case may be heard. Choice of law is a fairly complex decision in which typically the party drafting the contract chooses the state which has contract interpretation laws that would be most favorable to its interests.
    • If you don't know much about the contract interpretation laws in various states, it may be easiest simply to choose the state where you live, since you can most easily learn those laws and find an attorney if you need one.

Part 3
Entering the Agreement

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    Consider consulting an attorney. Although it isn't necessary to be represented by an attorney when drafting and entering a broadcast agreement, you may want to have an attorney look over your final document to make sure that it reflects your intent.[28]
    • You typically can hire an attorney simply to look over the contract and provide his or her advice for a lower, flat fee than if you hired an attorney to draft the contract and represent you throughout the transaction.
    • An attorney also can give you advice on how the contract will affect your existing intellectual property rights and their value.
    • Attorneys also have specific knowledge about contract laws in the state, and can advise you on any particular matters that must be addressed or any clauses that a court would interpret differently than your intent.
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    Finalize the document. When you have your contract drafted, go through it several times to ensure there are no typos or formatting errors. You also should be on the lookout for grammatical or punctuation issues that make it difficult to read or understand.
    • Once you've got a final draft of your contract, show it to the broadcast company's representative and give him or her time to read it over and make sure it expresses the terms to which you previously agreed.
    • If the other party requests any changes, whether they are substantive changes that actually alter a term of the contractual relationship or merely changes in wording to enhance clarity, you should discuss them and come to an agreement on how the document will look in its final form.
    • When both you and the other party are satisfied with the contract, print at least two copies for signing. This allows both you and the broadcast company to have an original signed contract for your records.
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    Sign the agreement. For your broadcast contract to be legally valid, both you and a legal representative of the broadcaster must sign it. You also may want to have blanks on each page for the parties to initial each page of the agreement.[29][30][31]
    • Initialing each page ensures that if the signature page is lost or destroyed, evidence of the agreement still exists.
    • If any handwritten changes or corrections are made to the final agreement, these marks also should be initialed by both parties.
    • If you have a registered copyright or trademark in your show, it isn't necessary to record your broadcast contract for it to have legal effect. However, you can record it with the U.S. Patent and Trademark Office (for trademarks) or the U.S. Copyright Office if you want.

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Categories: Contracts and Legal Agreements