PROPOSED DGA NATIONAL COMMERCIALS CONTRACT ENDORSES CODE OF “DIRECTOR’S CREATIVE RIGHTS”

November 20, 2009

The Directors Guild of America (DGA) and the Association of Independent Commercial Producers (AICP) have negotiated a new two year National Commercial Agreement effective December 1, 2009.  The contract is currently with the DGA membership for ratification, which is expected.

Among other items in the new contract such as compensation, work rules and pension and health adjustments, the contract includes a section titled “Director’s Creative Rights”.  The DGA and AICP agreed to the inclusion of this section as a “non-contractual” guideline for Directors, Advertising Agencies and Production Companies.

While these “creative rights” are not legally enforceable, BBS thinks it’s significant that for the first time they are being included in an agreement that’s been sanctioned by the vast majority of TV commercial directors and production houses. Probably the most controversial provision will be the right of a director to make the first cut of the commercial. This practice is not commonly followed in the US, but is customary in much of Europe.

The eight items in the code of preferred practices on creative rights for commercial directors are as follows:

• At the commencement of the bidding process, the Agency shall fully disclose the status of project, including whether the commercial has received the necessary client (and with respect to pharmaceuticals, FDA) approvals and all intended uses of the material.
• In the event that treatments are requested by more than three (3) Directors, each Director shall be notified of the number of Directors from whom treatments are being requested at the time the Director is asked to provide a treatment. If the number of Directors from whom treatments has been requested exceeds three (3) Directors after a Director has been asked to submit a treatment, the Director shall be provided with such information within 24 hours.
• As an act of courtesy, a Director who has been asked to submit a bid or treatment for a project will be informed when a project has been awarded (orally or in writing) to another Director on the same day the project is awarded.
• After a commercial has been awarded to a Director, the Director has the right to resign from the project if the awarded commercial script is replaced by another script or the awarded script has been rewritten beyond recognition.
• The Director shall have the right to select the First Assistant Director, Director of Photography and Production Designer. The Director shall be consulted on the employment of all other key personnel, and shall be included in the selection of the casting director, colorist and the editor where the casting director, colorist or editor has not already been contractually hired.
• The Director shall be sole person on set to provide notes to performers and crew.
• During photography, the Director has the right to determine who is present at the Director’s monitor.

• The Director shall be provided a reasonable period of time not less than twenty-four (24) hours per spot after the footage has been prepared and readied to be cut to deliver the first cut. No one other than the Director and editor shall be involved in the edit until the Director has delivered the first cut or the exclusive edit period has expired, unless the Director notifies the Producer that the Director cannot deliver a first cut within the exclusive edit period. In the event the Director is unable to provide a first out within the exclusive edit period, the Director shall be provided an opportunity to deliver his or her notes to the editor and the editor shall prepare a cut pursuant to Director’s notes.

Additionally, “The Guild has ..presented the code of preferred practices to the heads of production at the major advertising agencies, who have agreed to encourage compliance with its provisions.”