Most lawyers enter contract negotiations aspiring to achieve a fully signed agreement containing all material terms. But many business relationships – particularly in the media and entertainment world – proceed in the absence of fully signed agreements. Why do sophisticated industry people use short-form and unsigned long-form agreements? Do these agreements create binding contractual obligations? What tests do courts use to answer this question? And what risks do the parties take? Frankfurt Kurnit founding partner Tom Selz provides an important refresher course on fundamental principles that underlie our transactional work. Topics include: • A review of common short form documents and oral agreements • Deciphering the parties’ intent to be bound (or not to be bound) • Identifying “material” terms • Scope of the obligation to negotiate in good faith • Effect of partial performance • Promissory Estoppel, Quantum Meruit, and other “alternative” contract theories • Special considerations in pitch situations • Drafting tips • And more
Thomas D. Selz is a founding partner of Frankfurt Kurnit Klein & Selz focusing on entertainment law, copyright and trademark counseling, and motion picture, television, new media and publishing matters. In addition to transactional work from development through production and distribution, Mr. Selz focuses on mergers and acquisitions, secured transactions, private placements and public offerings, and other complex corporate work involving entertainment industry and intellectual property assets. For more than a decade, Mr. Selz has also helped structure international tax-advantaged financing for motion picture and television productions. Working with local counsel, Mr. Selz helped devise financing structures that are now used throughout the industry to permit clients to overcome substantial regulatory and business risks to be able to draw on funds from Canada, United Kingdom, Ireland, Australia, Germany and Hungary. He co-authored the U.S. Incentives chapter of the Film Finance Handbook: How to Fund Your Film (Netribution, 2007) and has most recently been appointed to the Cayman Islands Film Commission Advisory Board. Mr. Selz is the co-author of the Entertainment Law Treatise, 1st, 2nd, and 3rd Editions, Shepard's/ McGraw-Hill, 1983-2007, and of Entertainment Law, Casebook, 1st, 2nd, and 3rd Editions, Matthew-Bender, 1984, 1997, 2003. He is Adjunct Professor of Law at Columbia Law School (1998-present), and prior to that he was Adjunct Professor of Law at New York University School of Law (1977-1993). He is a member of the Association of the Bar of the City of New York (Member, Copyright Committee, 1978-1981) and the American Bar Association (Member: Section on Patent, Trademark and Copyright Law; Entertainment and Sports Industries Forum Committee, 1979-Present). Mr. Selz was a director of the Independent Feature Project (1986 - 2001), and served as General Counsel to the organization (1986-2008). Mr. Selz was recently recognized by New York Magazine as one of the New York area’s best entertainment lawyers, and was named a New York-area "Super Lawyer" for Entertainment work by Law and Politics magazine in 2006, 2007 and 2008. He was quoted recently in Financial Times on TiVo’s plan to allow customers to transfer television programs to Apple’s video iPod. He was also quoted in The New York Times, The International Herald Tribune, and other publications on the posting to the Internet of “Gone With the Wind” by the Australian affiliate of Project Gutenberg in violation of U.S. copyright law. Prior to founding the firm, Mr. Selz worked in the entertainment department at Paul, Weiss, Rifkind, Wharton & Garrison, and was associated for three years, doing entertainment work, with Emil, Kobrin, Klein & Garbus. He is a graduate of Cornell University (BA, 1968) and Yale University (JD, 1971).