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Top 5 Ailments in the Creative Realm. Part 2: The Gentleman’s Agreement

When a client comes to me and explains that the reason they have a dispute is because of this so called ‘ Gentleman’s Agreement’ , I shudder.

What is this Gentleman’s Agreement that causes rifts in relationships in our creative realm? According to Wikipedia,their definition of this term verbatim is :
A gentlemen’s agreement is an informal agreement between two or more parties. It is typically oral, though it may be written, or simply understood as part of an unspoken agreement by convention or through mutually beneficial etiquette. The essence of a gentlemen’s agreement is that it relies upon the honor of the parties for its fulfillment, rather than being in any way enforceable. It is, therefore, distinct from a legal agreement or contract, which can be enforced if necessary.

If I was to start explaining the history of this phrase, I am sure I would bore you to death. But in a nutshell, it was a phrase that used to describe oral agreements of a discriminating nature, mostly racial. Years later it has evolved in practice to connote an agreement by two or more people without relying on a written contract to honorably keep their ends of the bargain in a certain deal.

Perhaps there was a time this mode of operation really worked and was effective in all sectors of trade. When honour was respected. But today, everything comes down to paper. As we struggle to get the creative industry to embrace formality, this is one ailment that continues to eat away the industry and make it harder for us ‘Intellectual Property Law Activists’ to create standards.

In my experience, this agreement is most common between friends and family who are about to undertake a working or business relationship. They hardly put their agreements: comprising of duties, liabilities and the sharing of profits and losses on paper. But when success knock on their doors, it becomes a recipe for mayhem. That is when disputes arise. And when this happens it becomes very hard for us as lawyers to assert what belongs to whom. And thereafter, the relationships 80% of the time are damaged and lost.

There is no shame in asking for an agreement to be put down in paper and pen. In fact it helps save working relationships. The agreement is the referee and is able to put down fires in the event of a dispute. Besides, oral agreements as we legally refer to them, (gentlemen’s agreements) are hard to prove or track and most cases it is a he said- she said type of scenario. In in the law of evidence we refer to it as hearsay! Which is completely inadmissible in court when trying to defend a case.

Allow me to point out what is obvious to all of us… Where money is involved, the ‘gentleman suit’ fades and the claws come out to fight. In my opinion, the words ‘gentleman’ and ‘money’ do not go hand in hand. Ever!

Being that Entertainment and the creative sector is still struggling to come out of its informal uniform, it is important that the sector players embrace this change and adapt the culture of drafting and entering into legally binding agreements/ contracts which define the obligations of the parties and define how profit and losses are shared (among other terms)…all in black and white!

A legal contract/ agreement is drafted based on the peculiarities of a case and what is agreed between the parties and depend on individual cases and scenarios. You could do it yourselves or involve your lawyers. As long as both parties read and understand and accept what is in put down in agreement, it then becomes binding. And for the best part of it, it becomes the go to document in case of a dispute.

For quite a while now, I have observed that in the creative realm, these gentlemen’s agreements connote desperation. If you do not assert your rights, you are basically inviting someone to trample over your rights.

We should do away with the gentlemen’s agreement! It is another ailment that needs to be eradicated without hesitation.