Feature Article from the December 2008 AIRblast      

Terms of Agreement

By Wesley Horner

None of us would dream of beginning production without such basic tools as a microphone, a recorder, and a decent cable to connect the two. Neither should we begin work on a production without the basic documents needed to ensure that we have the legal permissions we need to make use of the elements we're about to record, and the legal agreements that protect our ownership of our work and ensure that we'll get paid.

This introduction is intended as a concise review of some of the basic agreements used by independent radio producers.

There's also a template appended to this article for a term sheet. That's a preliminary agreement between a producer and distributor. It was drafted and reviewed by some of our most capable colleagues: Jonathan Miller, Moira Bucciarelli, Sue Schardt, Todd Melby, and Jim Russell. Our next step will be to invite comments from our colleagues at the three leading distributors of independent producers' work: PRI, NPR, and APM.

None of this should take the place of good legal advice from a lawyer schooled in the peculiarities of broadcast and entertainment law. Become friends with a lawyer. Make him or her an essential part of your team. Before you begin a project, talk it through with your lawyer and figure out the agreements you'll need. And to make the lawyer's job easier and keep your legal costs affordable, talk over terms with your subcontracted helpers, talent, and distributor on your own time.

I was schooled in the basics of legal agreements in the public radio arena. My early training included on-the-job tutoring in contracts, while working in national production at WGBH Boston, at National Public Radio, where I was executive producer of Performance Today, and still later at Smithsonian Productions, where I was executive producer of series such as Remembering Slavery and Jazz Smithsonian with Lena Horne.

All of these projects needed agreements with interviewees, independent producers, hosts, musicians, composers, graphic designers, writers, production partners, book publishers, distributors, and others.

Currently, I am lucky to be working on a new series for public radio, Five Farms: Stories from American Farm FamiliesFive Farms is a wonderful collaboration among many, including stations, organizations, independent producers, production partners, distributors, and of course, the farming families who have been willing to allow us to record their work and lives for a full year on the farm.

For Five Farms, I needed agreements with:

  • CPB, which funded the project
  • WFCR Amherst, which is the home base and fiscal agent for the project
  • Independent producers or the organizations they work for, who interview the farmers
    Farmers and their families, who allow the producers to record the interviews and to take their photographs, as well as grant me to right to use the interviews and photographs in the broadcast series and for other educational outreach purposes
  • The Center for Documentary Studies at Duke University, which has become my extraordinary partner for post production, Web site construction and hosting, photography, and most significantly the person of John Biewen as series producer
  • Marketing consultant Deborah "Czarina" Blakeley
  • National Public Radio, which is airing a series of Five Farms features on All Things Considered
  • Public Radio International, which is the distributor of the Five Farms full-length documentaries scheduled for release in April 2009

In the future, we may also need agreements with iTunes or others for nonbroadcast distribution, partners in educational outreach, and even a composer and musicians to write and record original music for the series.

The list of agreements I just outlined follows a path from funding to field production to post production to distribution. The same path - with fewer stops along the way - would hold true for even the most straightforward production, for example a feature report for The World or Marketplace.

It's easy to organize the agreements you will need as part of your production. Follow the rights from the field where elements are gathered (literally, the field, in the case of Five Farms) to the listener. It doesn't matter whether your finished work is delivered through a distributor to local stations, or through iTunes. Each step along the path should be accompanied by an agreement, giving you and the other person or organization a piece of paper that spells out who does what, who owns the rights, and what, if any, money will exchange hands.

Of course, much of the time we can produce programs for air on public radio stations without some of the agreements I've mentioned. Use of pre-recorded music from CDs is an example. However, if you plan to distribute your work by any other means other than terrestrial broadcast on public radio stations (and you should), you do need to have permission to use all the elements included in your piece. Having those permissions in place gives you the maximum flexibility to distribute your work and greater options for earning income from alternate, ancillary distribution.

Negotiating and signing contracts you need to produce and distribute radio programs - licenses - should be as much a part of production planning as making sure that you have enough batteries. They not only protect you, but also give you the legal ability to earn additional money by distributing your work through more ancillary channels, such as online subscriptions or CD copies. The term sheet is a first step toward the contract process.

Now, go forth and create. But take a release form.

Click here to view the Term sheet for negotiating public radio program distribution.

Independent producer Wesley Horner has served as executive producer series including Remembering Slavery, Jazz Smithsonian with Lena Horne, Performance Today, and public broadcasting's first live stereo broadcast from Europe (Salzburg Festival, Magic Flute 1979).