TIFF Special: Distribution Agreement Checklist

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)
Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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