Paul B. Ungar, Esq.

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Mediating the Greed Game

 

This is a Commentary written by me and first published in the October 6, 1984 issue of Billboard Magazine (and is reprinted with their kind permission) and, as they say, it is based upon a true incident, with only the names changed to protect the ridiculous. According to my wife, one of her closest friends and confidants read it back then and decided I was OK – even for a lawyer – and told her that it was therefore cool for her to marry me (which she did about seven months later). And according my second law boss – who is still one of my best friends - it helped me get the gig with him when I included a copy with my resume. And even though I wrote it over 20 years ago, please decide for yourself whether or not it still rings true (Quick: Who said: "The more things change, the more they stay the same" ?*):

 

Mediating the Greed Game

 

To those who might engage the services of a lawyer for the purpose of negotiating entertainment industry contracts, permit me to spin a tale which illustrates how not to use an attorney while simultaneously increasing the client's legal costs by quantum proportions:

 

Enter Mr. Producer, Ms. Artist and my client, Mr. Megabucks. Producer had introduced Artist to Megabucks at a party, and their vibes were immediate and wonderful. Megabucks thus decided to invest his hard currency in a dream combining Artist's talent and Producer's creativity. Off they traipse to a studio, where Producer merrily spends Megabucks' money recording Artist's tunes.

 

The three agree that Megabucks would get back his investment from initial earnings, and thereafter each party would receive a one-third share of net recording and publishing revenues. Megabucks and Producer were to form a record label/publishing company and sign Artist as their first act.

 

At Megabucks suggestion, they have now come to my law office for a consultation on a summer's Friday afternoon. I review their proposal with but minor comment, and compliment the sense of fairness each has maintained despite their years of collective dues paying. At their request, I agree to draft the necessary paperwork for a set fee.

 

I send them home to enjoy the weekend and to bask in peace and harmony, reminding them to pick up the contracts on Tuesday. I ride into the New Jersey sunset to enjoy my weekend, secure in the knowledge that Monday will finding me earning an honest dollar or two.

 

On Monday morning my secretary bursts ashened into my private chambers as I'm about to scribe the deal. Megabucks and Artist are outside insisting that I see them without an appointment. Methinks it must be serious, so in they are shown.

 

It seems they've had a tiff with Producer, which has disturbed their weekend bliss. He has demanded Artist's management, the accompanying 25% commission of Artist's gross income, and additional 10% of Artist's gross as a finder's fee and, of course, his one-third net share of recording and publishing monies.

 

Megabucks and Artist now inquire whether my New Jersey acquaintances include any who specialize in kneecap rearrangement. Notwithstanding temptation, I suggest instead that all parties meet so as to arrive at some mutually acceptable compromise. Megabucks and Artist insist that everyone's own attorney be present as well. I discreetly remind Megabucks of my hourly fee for contract negotiations. At the meeting later that day, nothing is resolved through several hours of screaming.

 

After more meetings Tuesday, Wednesday and Thursday, the other lawyers and I finalize a series of agreements between our respective clients. The combined effect of these agreements is nearly identical to the clients' proposal of last Friday.

 

Equity has prevailed, but with a slight addition: some 20-extra hours of billed negotiation time for each of the three parties – so make that an extra 60 hours. I hand my invoice to Megabucks and he contemplates another contract – this one on the lawyers' lives.

 

What caused these characters to spend eight or nine times more than they should have for legal services? Instead of having an attorney merely review and draft a proposal which they negotiated themselves using their business experience, they decided to play The Greed Game. It is a game which inevitably concerns two basic issues: the division of net profits, and creative control, as evidenced in this case primarily by the dispute over management.

 

But these issues are not legal issues and are not necessarily handled best by attorneys. Before I'm tarred and feathered by my brothers and sisters at law, I suggest that the client consult with an entertainment attorney if unsure of reasonable industry parameters or of what options are available.**

 

However, the decision of whether to haggle or walk from the deal is ultimately the client's. It is best based upon the attorney's advice and the client's own gut perceptions of his or her proposed associates.

 

So like every good fable, my story ends with a simple moral: Use your lawyer efficiently to negotiate the many other non-Greed Game issues which arise in entertainment contracts such as accounting procedures, royalty calculations, indemnification, cross-collateralization, marketing restrictions, etc. There's more than enough legal work involved to keep the gas tank full in his or her BMW.

 

Play the Greed Game if you so desire, but don't play in your counselor's office, lest the final score be:

 

Lawyer wins, You lose.

 

______________________________________________________

*According to Google (which -  parenthetically - didn't exist in 1984 and because of which today – parenthetically -  it took me about 5 seconds to find the following tidbit…whereas back then, I probably would've had to go to a (GASP!) Library and spend some time actually looking this up in a (GASP!) Book….all of which definitely would've taken me more than 5 seconds….): THE MORE THINGS CHANGE, THE MORE THEY STAY THE SAME – "Nothing changes too much. The proverb is of French origin and was used by the French novelist Alphonse Karr (1808-90). It also appears in George Bernard Shaw's 'Revolutionist's Handbook' (1903). Listed in the 1946 'Macmillan (Home) Book of Proverbs, Maxims and Familiar Phrases' by Burton Stevenson and in the 1992 'Dictionary of American Proverbs' by Wolfgang Mieder et al." From "Random House Dictionary of Popular Proverbs and Sayings" by Gregory Y. Titelman (Random House, New York, 1996).

 

**Especially today in the New Millennium where the entertainment biz is changing – literally – day-by-day.      

-        Paul B. Ungar, Esq.

 


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