Say you read a book or saw a movie and you think to yourself, “That would be a great show.” If you actually want to produce that show, the first thing you would have to do is acquire the rights to that source material. The same applies if you read a play and want to make it into a musical, or if you see a new play in a small theatre that you want to bring to a larger theatre. You need the author rights.
That’s when you first call what is known as production counsel, a.k.a. a lawyer specializing in entertainment, specifically theatre.
Doug Nevin is one such lawyer who, six years ago, opened up his own firm to specifically cater to the needs of theatrical producers. “A lot of the young people that I had come up with in the theatre were starting to move and shake [as producers] and they were going to need lawyers, so it made sense to open up a shop that could service them as they grew.” Nevin serves as production counsel on Broadway’s Slave Play, Slava’s Snowshow, as well as the national tour of What the Constitution Means to Me (and its previous runs), and the Off-Broadway now-commercial production of Our Dear Dead Drug Lord, with seven other projects in the pipeline.
Production counsel is the essentially the “producer’s partner,” working on the legal side to mount a show.
In addition to assisting in acquiring rights or commissioning writers, these lawyers “advise producers on how to finance the development and commercial production of a show and the various federal and state regulations that impact that.” Which means they write the contracts between lead producers; they create the plan for how the money for a show will be raised, which all of the investors sign. They draft the agreement between co-producers as well as the agreement with the general management company, which then handles the budgeting and financial operations of the production. Production counsel handles venue agreements—what the actual theatre provides to the production. Then there are creative agreements with directors, choreographers, etc., that outline their responsibilities and compensation. Nevin also works on star agreements, when a performer may not only earn a salary but a percentage of the box office.
“If you think of a book, lyrics, and music as the creative DNA of a show, you can think of the operating agreement as the business side’s DNA of a show,” says producer Matt Ross, a client of Nevin’s. “It outlines how the show is structured, what the plans are for it, how investors participate in it.”
“The agreements that you’re making with the creative team, with casts, with the different people involved in the show, with your investors, these are really the DNA and the backbone of how you’re doing business within a production,” Ross adds.
Nevin answers questions about what is reasonable and standard, “but the most exciting thing for us are the bigger picture questions of: What if we were to try and do this play in this space at this time? What would that look like? What would the right structure need to look like? Will we be able to raise the kind of money we would need to do this? What would be the most cost-efficient way to raise that money?” he says. His job is to be innovative in business. For example, he recalls when one client asked: “If we can only get 16 weeks for a particular production, what other avenues might allow us to maximize value? Is it possible to do a live capture?”
“We need to continue to be more creative in how we do business, and good production counsel is a really important part of that,” says Ross. “We’re seeing plays return for a second season in certain places [like Fairview at Soho Rep and then TFANA]. American Son was released on Netflix. We have Audible in the space.” Each of these is an example of different “ways” to produce a show, different options of how to get that production to a wider audience—be it a second production, a film adaptation, or the audio recording release, all of which must have provisions laid out in the original contract.
“The goal is, really, how much more life can we create for this play? How much wider of an audience could we create for this piece of work?” says Ross. “You look at those agreements that allow for things to happen as you hoped, without it being contractually obligated.” It’s how something like What the Constitution Means to Me winds up going from one Off-Broadway theatre to another Off-Broadway theatre to a Broadway theatre to a national tour—all of those possibilities were outlined in a best-case scenario agreement.
Production counsel also serves as a general advisor, “meaning if an employment issues comes up, if an infringement issue comes up, if tickets are being sold on a broker site (which you can’t prevent) but are using the production’s copyrighted or trademarked material, all that kind of stuff we handle,” says Nevin.
Nevin says his strategic thinking, deft problem-solving, and strong writing skills make him the valuable production counsel he is today. But he also says that patience, the ability to articulate your ideas, and a passion for theatre are crucial to anyone considering law in this field.
“A contract here is the same as a contract there, but you can prep the contract for the sale of widgets or for the rights to develop and produce a major exciting young American writer. I think that’s probably going to be more fun,” Nevin says. “My favorite part of my job is when really great theatre happens—like on opening night of Slave Play or opening night of What the Constitution Means to Me—and watching great art materialize in these beautiful theatres and knowing that our clients made that happen is unbelievably thrilling.”
