With news on Thursday that the upcoming season of “Celebrity Apprentice” will include president-elect among its executive producers, I reached out to Los Angeles entertainment attorney Eric Spiegelman to explain to me what this actually meant.
We talked over chat on Friday morning; I've cleaned up the transcript a bit, as one does. Consider this a Portuguese-to-English Rosetta Stone.
THE FIX: First of all, explain to all of us non-Hollywood types what an executive producer does. How’s it different than a producer?
SPIEGELMAN: “Executive producer” can mean a few different things. Showrunners are executive producers, and they're extremely active in the production of the show.
Explain what a “showrunner” is in layman’s terms?
The person who runs the writers' room, the guy in charge of production of the show, who makes all the production decisions. I'm not sure how that term is used in reality television; people use it more in scripted.
Executive producers can be much more passive, as well. Some executive producers do nothing during production, some do “consulting” and give creative notes. Some are very active during the development of the show and very inactive during production.
I suspect that Trump's role as executive producer was active during development, active during production (when he was host), then more inactive since he stopped being host. He may still have certain creative approval rights which, to be honest, wouldn't take a tremendous amount of time. Consider, for example, how he responds to SNL on Twitter. Now imagine him giving notes that are a touch more detailed and have actual authority. That's probably the extent of how active he'd be as an executive producer.
So how does payment work? If NBC picks up a show for which he’s executive producer, how would you expect that to work, recognizing that this is detailed in a specific contract?
Some combination of front-end fees and a back-end profit participation. Even if his role is entirely passive, he could possibly still get a front-end fee. I'm pretty certain he gets a back-end profit participation in any case.
Wait. What are front-end and back-end fees?
Front-end fee is a specified amount, usually paid per episode and also paid during production. It's your salary, more or less.
Back-end fees are profit participation. In television it's called Modified Adjusted Gross Receipts. [Ed. - #MAGR!] Basically it's revenue derived from the show, less costs and other charges that gets paid when the revenues are accounted for.
That’s contractual, I assume.
I mean, it could be that Trump does no actual work on the show. It could also be that he does only a touch of work on the show, and that kind of work is simply looking at production decisions and giving thumbs up or thumbs down.
He also negotiated that executive producer credit for himself years ago, and there's no real reason he should have to give that up. You will find a number of presidents who had active credits on media products and derived passive income from them during office.
Oh, right. But not television as such.
SPIEGELMAN: There's not really that much of a difference. TV shows just have longer production and distribution windows. Ultimately it's all recorded material sold to an audience via some distribution medium.
There are two big differences, of course. The first is that NBC has a news arm that will be reporting on someone with whom the network has a relationship. And the second is that Trump may have influence over the product in an ongoing basis.
There's a pretty big separation between the entertainment division at a major network and the news division. Asserting otherwise would be like alleging that your publisher wants you to drop a story.
There are ways for him to have a stake in the show without having any credits, though, correct? That’s how Steve Bannon made his fortune, through “Seinfeld”?
I don't really understand Bannon's involvement with “Seinfeld.”
He got a stake in it as payment for work being done in relation to Rob Reiner’s production company. Reiner did an interview on it a few weeks ago.
From The Daily Beast:
“What happened at that time is that Westinghouse, who owned a piece of our company, consulted with Bannon’s company to see what kind of deal they should make for that piece of our company. So Bannon was hired as a consultant for that,” says Reiner.“Part of the deal was that Westinghouse could either sell or hold on to whatever TV series we had. At the time we had eight pilots, and one of them was Seinfeld. We didn’t know if it was going to be successful or not. But as payment, Bannon advised them to stay in and hold on to their profit participation in the series, and Westinghouse said, ‘Well, if you think it’s so good, why don’t you take a piece of this instead of us giving you a fee?’ And apparently that’s what Bannon did, and he wound up with a small piece of Seinfeld that he’s had forever.”
Hilarious. That was a very good deal!
So it seems.
Honestly, if Bannon saw “Seinfeld” as a hit that early, he should be in the White House. That is some real prognostication right there.
Well, we don’t know about the other seven shows.
So it’s your sense that this is not the crisis that some have suggested.
Correct. It would be like faulting a president for making model airplanes while in office. Whether it's an emolument or not, I can't say.
You mean constitutionally.
[Ed. — The “emoluments” clause of the Constitution bars “emolument" -- salary or profit — for a person in office stemming from “any King, Prince, or foreign State."]
The “hobby” argument is the one Trump transition staffer Kellyanne Conway made, for what it’s worth.
I don't think it's that off.
Whatever Trump gets paid now is really more of a reward for past work than it is active producing. Trump wants to consider himself a producer though, understandably. He won't admit that his involvement is mostly passive because “producer” has a certain air about it.
So how does one get a gig making a decent amount of money by offering a tiny bit of feedback every so often?
Contributing meaningfully to the project in its very early stages of development.
Trump did much more than that. He built the show into a real success. Under Hollywood custom, that entitles him to benefit financially from the show until the end of time.
Heck of a system.
You've heard the phrase “risk justifies the reward”?