Q: I just had someone send me an option agreement. I’m not going to lie… a lot of it is legal mumbo jumbo that I don’t fully understand but seems harmless. There’s one thing though that seems really weird. It says that the Producer is my “attorney-in-fact” with the power to sign documents on my behalf? This strikes me as really sketchy. Is this Producer trying to pull something over on me?
A: I’m not going to tell you that the Producer is not trying to pull one over on you. All the Producer wants is the power to purchase a smallish yacht, a couple of European castles, a Picasso or two and some shrunken heads on your credit. So what if the Producer wants to go all MC Hammer in your name? At least you’ll have a chance to be the next FreeCreditReport.com singer. Right?
Half-hearted attempts at humor aside, that provision alone isn’t going to lead to a life of used sub-compacts and catchy jingles that get stuck in my head for weeks at a time. It’s actually a very common provision (that admittedly tends to scare people who actually take the time to read their agreements). If the provisions in your agreement have titles, the one you’ve quoted is likely under the title “Further Documents.”
The overall purpose of your option agreement from the Producer’s perspective is to give the Producer the ability to exercise the option and purchase all the rights in your script. Let’s say that for some reason your agreement isn’t enough to demonstrate the Producer’s full ownership of the script or that the Producer needs an additional document signed (e.g., for copyright registration purposes) in order to evidence that he owns all the rights.
That’s where this provision comes in. In it, you first agree that you will sign any such documents the Producer may need to demonstrate his rights. It will then go on to the language you quoted in your question which is a bit of back up protection for the Producer. Let’s say the Producer contacts you and asks you to fulfill your obligation to sign additional documents but you’re too busy watching the third season of Tim and Eric Awesome Show, Great Job! and you won’t do it. The Producer needs the document. Under the language you quoted from the “Further Documents” provision, you’ve granted the Producer the right, in the face of your obstinance, to sign the document on your behalf. The term “attorney-in-fact” is just some legal mumbo jumbo giving the Producer the right to do this.
The truth is, I’ve never heard of anyone actually exercising their rights under such a provision. But they’re there so they’re something us lawyers can argue about. Thankfully, there’s not too much to haggle over. The two things you should definitely demand: First, and most important, is to make sure that the Producer’s right to sign documents on your behalf is limited only to those documents that are necessary to effectuate the terms of your option agreement. You obviously don’t want any shrunken head purchases in your name. Second, add language stating that the Producer must promptly send you copies of all documents signed on your behalf.
Once you ensure you’ve got those two things, you can stop fretting over this provision. It may sound scary, but it’s really quite harmless (like most lawyers, actually). As your “attorney-in-fiction,” I would advise that your energies would be better spent freaking out about the rest of the agreement.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.