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TIFF Special: Distribution Agreement Checklist

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What does TIFF (the Toronto International Film Festival) entail? Distribution deals!  And what do distribution deals entail for lawyers? Checklists! While too simple for a long-form agreement, this checklist highlights the basic elements which should be present (or at least considered) in the drafting of even a short-form or “deal memo” arrangement.

  • Proper identification of parties
  • Scope of rights (by media; indicate any reserved rights)
  • Territory (if territory not world, geo-gating of online rights)
  • Term (any right of reversion (e.g., for failure to meet performance thresholds)?)
  • Fee/advance (payment schedule)
  • Disposition of receipts (amount of commission (inclusive of sub-distributors?); definition of commissionable base (e.g., gross or net); recoupment of advance (interest?); recoverable expenses; home video royalty; cross-collateralization)
  • Reporting (frequency)
  • Audit rights (incl. payment for audit costs if discrepancy over threshold)
  • Release commitments (e.g., theatrical release, minimum number of theatres)
  • Marketing commitments (e.g., minimum spend per territory)
  • Consultation/approval rights over marketing and release
  • Distributor’s editing rights (censorship, timing, etc.)
  • Assumption of guild obligations
  • Assumption of profit participation, box office bonus, etc. obligations
  • (for Canadian content productions) Canadian status of distributor for Canadian territory and inability to sub-license to non-Canadians and commitment to exploit in Canada within two years of completion of production
  • Delivery obligations (date(s); materials (access or physical delivery))
  • E&O insurance coverage
  • Termination rights for breach (and opportunity to cure), bankruptcy (and for Canadian productions, failure of distributor to retain Canadian status)
  • Assignment clause
  • Governing law clause
  • Dispute resolution clause (arbitration; court; choice of forum)