In a recent session, entertainment lawyer David Tenzer sat down at the request of the Biederman Blog to discuss a range of topics, including a common pitfall among starry-eyed deal makers, the new profit participants in the lucrative field of reality star lifestyle brands and his suggestions to practitioners on how to avoid becoming an unhappy lawyer in the up-and-down entertainment industry.
Q: Who is your average client?
I represent actors, writers, directors, producers, production and distribution companies, lifestyle experts and on-camera personalities — so it’s really all across the board. Most of the people I represent are in the television business, especially nonfiction. Many have an initial platform in television, but they have other platforms as well.
Q: You’re known for working with “dual-threat” talent — people who perform multiple, above-the-line functions, such as host and producer on the same TV show. What makes these clients attractive?
I find that people who wear a couple of different hats tend to have really interesting careers. They may have a greater number of choices at any given moment in their career. They’re a lot of fun to represent. We usually refer to them as “hyphenates.” There’s a good chance that a hyphenate talent ends up with more control over a project, if they are wearing more than one hat in connection with that project. They’re not just being hired to perform, or hired to write, but may be involved — for example — on a producing basis, as well.
Q. What part of talent deals is most often under-negotiated?
One of the most important aspects of an entertainment deal, sometimes every bit as important as compensation and credit, is what happens if the project doesn’t go forward. Who does it revert to? One of the first things you do in a given situation is look where the project originates from and determine ownership. Who owns it at this point, i.e., before the deal is made. Who owns it if it moves forward? If it doesn’t move forward, who does it come back to? It’s a really important thing to be sensitive to at every step along the way. Sometimes, and this is a mistake, in my opinion, the reversion and ownership issues are left a little ambiguous because nobody wants to think about what happens in failure. They only want to think about what happens in success. That’s where it sometimes gets a little tricky.
Q: Do dual-threat or hyphenate talent hold greater or different leverage in deals?
If someone is an on camera personality and has their own idea for a project, it’s a fundamentally different kind of deal if they are saying to a production company, “I’ve created a project for me to star in and I want to produce it as well. I want to do this project with you, but if it doesn’t go forward within a certain period of time, I want the rights to that project to revert to me.” It’s a different deal when a production company creates an idea and hires an on-camera personality. From an ownership point of view, ownership stays with the production company if it doesn’t move forward.
Q: Can you discuss a key concern for lifestyle expert-reality personality talent?
The most significant thing that’s happened in the past few years is seeing what’s happened with product lines and other revenue streams. Networks, and now even production companies, are saying to reality cast members: “Nobody knows who you are and we’re giving you this platform. If you create other businesses based on this huge television platform we’re giving you, we’re going to want a piece of those additional income streams, at least for some period of time.” As problematic as that may be from a talent representative’s point of view, it is being done all the time now. People are agreeing to it. The argument for it is not illogical. It’s something that has to be addressed now in deals, because networks often aren’t going to make these deals without that kind of protection. Production companies who aren’t providing the same kind of platform are now saying the same thing. In that situation, it may be less justifiable. Production companies may not be providing the actual platform in the same way that a television network does. Instead, they are connecting you to the people who are providing the platform. One way or another, it is now something that is on the table and needs to be addressed.
Q: Do networks and other profit participants have an argument to claim a stake in reality stars’ off-camera, ancillary revenue?
The argument is that if somebody is completely unknown and then all of a sudden they are thrust into the media spotlight as a result of a television network saying “OK, here’s 13 episodes. We’re going to give you a great time slot, promote you, and really let people know who you are. To the extent that new things happen for you outside of television, but in the media, as a result of this incredible exposure that we’re giving you, we’re going to want a portion of the revenue that comes from those things — at least for a period of time.” It’s not a ridiculous argument. It’s just very problematic from a personality’s point of view, especially when they are not being paid a lot of money for the television show itself. If a talent was being paid a lot of money for the TV show and the network or the production company then said “We’re paying you a lot of money and we want a piece of this differential,” I’d be a lot more sympathetic to it. But just like everything else, it’s a negotiation.
Q: What other changes or trends have you found yourself dealing with a lot?
As studios, networks, and production companies have become more risk averse, there is a lot of release language and waiving of rights that makes me feel really uncomfortable [on behalf of talent]. What talent often end up signing says “I’m going to release you from any number of things that I’m not even sure what they are yet, I can’t even imagine what they are yet … but I’m going to release you from defamation, for example.” I understand why a studio or network wouldn’t want to have an argument with talent about whether something shown on-air is defamatory, or if it exposes them to public ridicule, or invades their privacy. But the release language is often very one-sided and the talent is giving up a lot of rights. We can find some happy medium with respect to all of this, I suspect. But it hasn’t happened yet.
Q: Halfway through 2012, what might you see as the most significant entertainment law development so far?
It’s a broad business comment. We’re in the midst of massive change in the media business, from mass market to narrow markets, “broadcasting” to “narrow-casting” in television parlance. It may not necessarily change the legal concept of what a copyright is, or what a work for hire is, or what exclusivity is, or how rights are defined, or how they might revert. However, it is going to absolutely affect what entertainment lawyers do for a living, how they do it, and how successful they are in doing it. So they really have to understand it, become students of the business, and it will make them better lawyers.
Q: Any suggestions to practitioners or law students on how to avoid becoming an unhappy lawyer?
You can’t divorce the “law” part of any law career from the business that it exists in. A lot of the pleasure of being an entertainment lawyer comes from the fact that I like the entertainment industry and have an interest in it. So I would say: Start with what you’re excited about and passionate about in a particular area of the economy or of society that you want to work in. Then figure out what you can do as a lawyer in that area to add value.
David Tenzer is an entertainment lawyer with his own practice based in Los Angeles. He is also a talent manager and business consultant, with extensive experience in many sectors of the media industry. Clients of his law practice include Entertainment One (“Rookie Blue”), Jarrett Creative Group (“Celebrity Ghost Stories”), Matt Kunitz (“Wipeout”), Melissa Joan Hart (“Melissa & Joey”), David Steinberg (“Inside Comedy”), college wrestling champion Anthony Robles and YouTube personality Michelle Phan. Earlier this year, he testified as an expert witness in the high-profile Golden Globes trial in U.S. District Court in Los Angeles. For 24 years (1982-2006), Tenzer worked at Creative Artists Agency in Los Angeles, one of the world’s leading talent agencies, as a business affairs executive and a television packaging agent. Prior to that, he worked as a studio lawyer at Columbia Pictures in Los Angeles. He holds an undergraduate degree in Politics from the Univeristy of California, Santa Cruz, a law degree from the University of California, Davis, and an Urban Studies master’s from Occidental College. He was a Coro Foundation Public Affairs Fellow and earned a Certificate in Advanced International Legal Studies from McGeorge School of Law.