Author: Lauren Edwards, Entertainment Lawyer
Five Submission Release Tips – Introduction
A submission release is a contract that “releases” a person who receives information from obligations to the person who shared that information. Television and film writers often encounter submission releases when pitching materials. By way of example, let’s say you have an awesome idea for a new kids TV show and want to pitch it to a TV station, JustKidsTV (JKTV). Before JKTV agrees to hear your idea, they may ask you to sign a submission release. This blog will address some of the risks you should be aware of before you sign. (Note: these tips are applicable equally applicable to production studios, video streaming services and other entities which may ask you to sign a submission release).
Submitting an idea may reveal confidential information. By submitting your (brilliant) concept to JKTV you are sharing information that is not yet public. You may want JKTV to keep it private. It is important to clarify your expectations around confidentiality. Consider whether JKTV may talk to its employees about the idea that was pitched? What about its professional advisors? May the company talk to potential partners, financiers, producers, distributors, etc. to test the viability of the idea and attract support for it? Does the obligation of confidentiality also require these third parties to keep the idea private? How long does the obligation of confidentiality last? You should know the answers to these questions before you agree to a submission release.
2. Specific Purpose / No Obligation for Recipient to Use the Idea
Submitting an idea may lead to a business relationship. You hope that JKTV will want to use your concept, and that they will not use it without your permission. Does the submission release allow JKTV to use your concept without making a deal with you? What do they promise to do if they are interested? It is important to clarify the company’s obligations should they choose to use your concept and, where possible, ensure that nothing can be done without your permission and agreement.
Typically, broadcasters will include a clause in a submission release agreement which provides they have no obligation to actually use your concept; they will only give your idea the amount of consideration they determine is appropriate. In such circumstances, you should set a limit on how much time the broadcaster has to consider your idea before making a decision.
3. Five Submission Release Tips – Similar Work
Submitting an idea is about originality. You submit your concept to JKTV because you think it has value (after all, it’s such a brilliant new show idea). But what if JKTV already has a similar project in the works? This is not so unlikely when you consider the context: both you and JKTV are working on show ideas for the same target audience, trying to make something new but not too new—perhaps a new spin on the same current popular show? It is reasonable for JKTV to raise this possibility to protect itself from a claim of copyright infringement should it go ahead with a concept similar to, but not based on yours. Typically, a submission release would relieve JKTV from liability in these circumstances. Just as often the release will prohibit you from even raising the notion that JKTV relied on your idea. It is important that the release does not go farther than necessary to protect JKTV from using a concept that is similar, or even identical, to yours (as long as it is not actually based on your idea).
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A warranty is a promise that certain facts are true. Generally, in a submission release, the person submitting the idea makes all the warranties. In our example, you may warrant to JKTV that the concept is solely your own, that it is an original idea, and that, no one else has any right to it. Such promises may protect the company from claims of copyright infringement by a third party.
Now imagine JKTV produces your concept into a TV show and broadcasts it. Later, JKTV gets a claim alleging that the idea for the show is identical to a kids television show that aired in Japan ten years ago. JKTV will look to you—the person who brought them this idea and promised that it was an original idea—to compensate them for any losses. What if you had no idea that the other show existed? Maybe your warranty should have been limited to “the best of my knowledge”? Again, these types of warranties are typical and reasonable, but care must be taken that they do not go too far.
Submitting an idea comes with risks. In our example, there is a risk that your concept could be used without your permission and without compensation, or that JKTV might not keep it confidential. What remedies are available to you in these scenarios? A typical remedy is an injunction; that is, an order from a judge that restricts JKTV from continuing to do something it is not entitled to do (like airing a TV show based on a stolen concept). If JKTV does not pick up your show, but several months later you see a show on JKTV that is very similar to the show you pitched, you may want to ask a judge for an injunction. It is likely that JKTV will want to avoid having its show cancelled, and may include a clause in the submission release that restricts your remedies to money damages and prevents you from getting an injunction.
These five examples are common clauses in a submission release agreements. If you are submitting an idea to a company, a submission release usually asks you to relieve the company from these obligations, either entirely or in part. To the person pitching the idea, this can feel like a risky proposition.
Five Submission Release Tips – Conclusion
- Make sure that the release does not go further than is necessary to address legitimate risks;
- Make sure you are comfortable with the reputation of the party to whom you are pitching your idea, including their reputation for integrity and for dealing fairly with creators; and
- Make sure that the opportunity for which you are submitting your concept justifies the risk.
Hopefully, this blog has given you some idea of why a submission release is important, why it contains certain clauses and some things to look for to protect yourself.
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Updated to December 10, 2021
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.