Legal Voice Over Help

THE VOICE OVER LEGAL and CONTRACTUAL GLOSSARY

Acceptance: Agreeing verbally or in writing to the terms of a contract, which is one of the requirements to show there was a contract (an offer and an acceptance of that offer). A written offer can be accepted only in writing. Law.com

AFTRA - One of the Performer's Unions that covers Voice Over work. Stands for American Federation of Television and Radio Artists. Generally covers TV shows produced on video, and radio, among other areas.

Arbitration Clause: A clause in a contract where the parties agree that any disputes will be decided by independent arbitrators and not in Court.

Breach of Contract: Failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work ("anticipatory breach"). Law.com.

Buy Out: A one-time payment to a voice over artist for their work, allowing whoever hired the talent to use the work forever and for purpose. Usually associated with non-union contracts where residuals are not paid.

Choice of Law Clause: A clause in a contract identifying which State's or Country's laws will apply to resolve any disputes arising under the Contract.

Confidentiality: A clause usually found in tv or radio contracts, but could be in any contract, where the talent agrees not to disclose to any third party and trade secrets or confidential information learned about the project while recording it. This agreement usually lasts until given written permission to disclose the information by the client, or until the piece is released to the general public or is broadcast.

Conflicts/Exclusivity: A clause usually found in a contract for an advertisement that restricts the type of job that a talent could accept which competes with the product being advertised. For example, a talent recording a commercial for Coca-Cola may be restricted from recording a commercial for Pepsi.

Consideration: A vital element in the law of contracts, consideration is a benefit that must be bargained for between the parties, and is the essential reason for a party entering into a contract. Consideration must be of value (at least to the parties), and is exchanged for the performance or promise of performance by the other party (such performance itself is consideration). Law.com

Contract: A Legally binding agreement between at least 2 parties. Can either be oral or in writing.

Copyright: Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. (Note: Each country has it's own version of Copyright Law). US Copyright Office.

Counter Offer: An offer made in response to a previous offer by the other party during negotiations for a final contract. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the terms of the counter offer or there is no contract. Law.com.

Employee: A person who is hired for a wage, salary, fee or payment to perform work for an employer. In agency law the employee is called an agent and the employer is called the principal. This is important to determine if one is acting as employee when injured (for worker's compensation) or when he/she causes damage to another, thereby making the employer liable for damages to the injured party. Law.com

Force majeure: (French for "superior force"), is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term "act of God" (e.g., flooding, earthquake, volcanic eruption), prevents one or both parties from fulfilling their obligations under the contract. Wikipedia.org

Hold Harmless: A promise to pay any costs or claims which may result from an agreement. In voice over, hold harmless clauses are sometimes used to ensure a talent has full rights to a work, or to ensure a producer assumes the risks associated with an advertisement, i.e., for asking a talent to perform a celebrity impersonation.

Independent Contractor: A person or business which performs services for another person or entity under a contract between them, with the terms spelled out such as duties, pay, the amount and type of work and other matters. An independent contractor is distinguished from an employee, who works regularly for an employer. The exact nature of the independent contractor's relationship with the party hiring him/her/it has become vital since an independent contractor pays his/her/its own Social Security, income taxes without payroll deduction, has no retirement or health plan rights, and often is not entitled to worker's compensation coverage. Public agencies, particularly the Internal Revenue Service, look hard at independent contractor agreements when it appears the contractor is much like an employee. An independent contractor must be able to determine when and where work is performed, be able to work for others, provide own equipment and other factors that are indicative of true independence. Law.com.

Infringement of Intellectual Property: In the law of patents (protected inventions), trademarks (protected phrases or logos) and copyrights (protected writings or graphics), the improper use of a patent, writing, graphic or trademark without permission, without notice, and especially without contracting for payment of a royalty. Even though the infringement may be accidental (an inventor thinks he is the first to develop the widget although someone else has a patent), the party infringing is responsible to pay the original patent or copyright owner substantial damages, which can be the normal royalty or as much as the infringers' accumulated gross profits. Law.com.

Intellectual Property: Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. World Intellectual Property Organization. www.Wipo.int.

Jurisdiction: The authority given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. It is vital to determine before a lawsuit is filed which court has jurisdiction. State courts have jurisdiction over matters within that state, and different levels of courts have jurisdiction over lawsuits involving different amounts of money. (Law.com). In voice over contracts it is important to add a clause in the contract to allow the Courts of a particular State to retain jurisdiction over the action, preferably in favor of where the Voice Talent is located, so the talent will not have to go to the Court where the Producer is located to sue to recover for monies owed under the Contract, or to resolve other disputes that arise under the contract.

License agreement: Defines the terms under which a resource or property such as, patents, trademarks, and copyrights are licensed by one party to another, either without restriction or subject to a limitation on term, business or geographic territory, type of product, etc. License agreements define how a party can use a patent, trademark or copyright and establishes the amount of royalties to be paid for such use. Wikipedia.org

Liquidated damages: An amount of money agreed upon by both parties to a contract which one will pay to the other upon breaching (breaking or backing out of) the agreement or if a lawsuit arises due to the breach. Law.com

Media: In voice over this refers to where a spot or the talent's work will be released or air. It could include TV, Radio, the internet, etc, and should be spelled out in the contract.

Meeting of the Minds: When two parties to an agreement (contract) both have the same understanding of the terms of the agreement. Such mutual comprehension is essential to a valid contract. It is provable by the express provisions of a written contract, without reference to any statements or hidden thoughts outside the writing (which is referred to as "Parole Evidence"). Law.com

Net 30: A form of trade credit which specifies that the net amount (the total outstanding on the invoice) is expected to be payment received in full 30 days after the goods are dispatched by the seller, or 30 days after the service is completed. Net 30 terms are often coupled with a credit for early payment; e.g. the notation "2% 10, net 30" indicates that a 2% discount can be taken by the buyer only if payment is received in full within 10 days of the dispatch of the goods, and that full payment is expected within 30 days. For example, if "$1000 2/10 net 30" is written on a bill, the buyer can take a 2% discount ($1000 x .02 = $20) and make a payment of $980 within 10 days. Wikipedia.org.

Non-Disclosure Agreement (NDA): Also known as a confidentiality agreement, confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to by third parties. It is a contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets. As such, an NDA protects non-public business information. Wikipedia.org

Offer: A specific proposal to enter into an agreement with another. An offer is essential to the formation of an enforceable contract. An offer and acceptance of the offer creates the contract. Law.com.

Quantum Meruit: Latin for "as much as he deserved," the actual value of services performed. Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected. This may include a physician's emergency aid, legal work when there was no contract, or evaluating the amount due when outside forces cause a job to be terminated unexpectedly. If a person sues for payment for services in such circumstances the judge or jury will calculate the amount due based on time and usual rate of pay or the customary charge, based on quantum meruit by implying a contract existed. Law.com

Residual Payment: Is a payment made to the creator of performance art (or the performer in the work) for subsequent showings or screenings of the (usually filmed) work. A typical use is in the payment of residuals for television reruns. Residual Payments are most often associated with Union Agreements, and compensate the performer for usage of the material. Wikipedia.org

Royalties: Are usage-based payments made by one party (the "licensee") to another (the "licensor") for ongoing use of an asset, sometimes an intellectual property (IP) right. Royalties are typically a percentage of gross or net sales derived from use of an asset or a fixed price per unit sold of an item. Wikipedia.org.

SAG: One of the Performer's Unions that covers Voice Over work. Stands for Screen Actors Guild. Generally covers works produced, or traditionally produced on film.

Service Mark: A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are used to refer to both trademarks and service marks. US Patent and Trademark Office. Uspto.gov

Session Fee: The amount of money paid to the talent for recording a voice over session in a studio, which is usually paid by the hour, to reimburse for the talent's time.

Specific Performance: The right of a party to a contract to demand that the defendant (the party who it is claimed breached the contract) be ordered in the judgment to perform the contract. Specific performance may be ordered instead of (or in addition to) a judgment for money if the contract can still be performed and money cannot sufficiently reward the plaintiff. Example: when a defendant was to deliver some unique item such as an art- work and did not, a judge may order the defendant to actually deliver the artwork. Law.com

Statutory Damages: Are pre-established damages for cases where calculating a correct sum is deemed difficult. In intellectual property cases (relating to copyright or trademark, for instance), it is often difficult for plaintiffs to determine the exact volume of infringement. Thus, statutory damages are often calculated as a multiple of the price for the use of the infringed right. These damages can amount to up to $150,000 for a single wilful infringement. Wikipedia.org

Talent Release Form: A standard form that a producer or client will request that the performer (talent) sign to authorize the use of their name and/or likeness in a final production that will be released to the general public.

Time is of the Essence: A phrase often used in contracts which in effect says: the specified time and dates in this agreement are vital and thus mandatory, and "we mean it." Therefore any delay-reasonable or not, slight or not-will be grounds for canceling the agreement.. Law.com

Term: In voice over contractual language, this usually refers to the length of time a commercial or other voice over recording may be used, ie, 1 month, 1 year, 1 year with a 1 year option to renew, or in perpetuity.

Territory: In voice over contractual language, this refers to the geographical area where a commercial or other voice over recording may be broadcast or distributed, i.e., locally, regionally, nationally, worldwide.

Trademark: Is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. www.uspto.gov

Unjust Enrichment: A benefit by chance, mistake or another's misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. If the money or property received rightly should have been delivered or belonged to another, then the party enriched must make restitution to the rightful owner. Usually a court will order such restitution if a lawsuit is brought by the party who should have the money or property. Law.com

Usage Fee: The amount paid to a voice talent as compensation for using the talent's work. The session fee ordinarily reimburses a talent for their time, the usage fee reimburses for broadcasting of the work. Usually paid in Non-Union contracts as residuals are paid in Union contracts.

Work for Hire/Work Made for Hire: Is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. According to copyright law in the United States and certain other copyright jurisdictions, if a work is "made for hire", the employer-not the employee-is considered the legal author. In some countries, this is known as corporate authorship. Wikipedia.org