As a screenwriter, you will be asked to sign many contracts and agreements. I've signed most of them myself. Here's my take on them, but keep in mind, I'm not a lawyer so take my advice with that proverbial grain of salt.
Before we even start I want to remind you to copyright your script with the US Copyright Office and register it with the Writers Guild of America, west. Both of them. Immediately. Before you send it out to anyone. Also, remember, you cannot copyright an idea, only an execution.
The first agreement you'll be asked to sign is usually a production company release. Most credible production companies will ask you to sign a release before they read your script. If you take the time to read the release, and please do, it will seem like you have given up all legal recourse against the company in case they steal your script. Fear not. You haven't. On the bright side, you can always sue, regardless of whether or not you signed the agreement, if they steal your intellectual property. In fact, the signed release will be important evidence that they actually communicated with you about the script. On the negative side, copyright infringement cases are notoriously difficult to win. Bottom line: Sign the agreement. If you are not willing to take that chance, you're in the wrong business.
If you write on assignment, you might be asked to signed a non-disclosure agreement which will prohibit you from discussing the details of the project with outsiders. I can go either way on these agreements. Usually I will quiz the producer about the project to see if I believe the non-disclosure agreement is warranted. If it is, I'll sign it -- depending on the terms. Once my then partner Tim Ratajczak and I were approached about a project. We were familiar with the filmmaker and we would have been happy to work with him. However, he wanted us to sign a particularly onerous non-disclosure agreement. It was ridiculous. Tim and I could be held liable for hundreds of thousands of dollars of damages if we mentioned any detail of the project to anyone even if there was no proven damage. And it was so vaguely-worded that I would be guilty even if I talked in my sleep. Nope. We didn't sign. The project went away.
I have been represented by agents. I never had a signed agreement with any of them. For example, I was represented by the late Stu Robinson at both Weinstein Robinson & Gross and Paradigm. I never had a signed contract with him. When he agreed to represent a script, he would simply send me a letter stating that fact. No terms were specified or defined. The relationship between writers and agents is defined by an agreement between the Writers Guild of America, west, and affiliated agents. The agreement determines the nature of the work and the compensation. There is no real need for any further agreements.
I never had a manager, but the relationship between managers and artists is less defined and more freewheeling. They can charge more than agents, or, I suppose, even less (don't count on that.) You will definitely need a contract. Make sure you have an escape clause.
I have been represented by agents. I never had a signed agreement with any of them. For example, I was represented by the late Stu Robinson at both Weinstein Robinson & Gross and Paradigm. I never had a signed contract with him. When he agreed to represent a script, he would simply send me a letter stating that fact. No terms were specified or defined. The relationship between writers and agents is defined by an agreement between the Writers Guild of America, west, and affiliated agents. The agreement determines the nature of the work and the compensation. There is no real need for any further agreements.
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| Agency agreement for my script Mr. Inside |
I never had a manager, but the relationship between managers and artists is less defined and more freewheeling. They can charge more than agents, or, I suppose, even less (don't count on that.) You will definitely need a contract. Make sure you have an escape clause.
Another document a producer might ask you to sign is an option agreement. These agreements tend to be short and sweet -- lacking the boilerplate legalese you will find in a purchase or employment contract. The agreement will specify the amount paid for the option and the term of the option. The price for the eventual script is usually not included. It is usually noted that the price will be determined in "good faith" at a later date. My advice: Never agree to an option without money. Remember, if you don't put any value on the script neither will the producer. Also, I won't sign an open-ended option which allows the producer to keep automatically renewing the option. I usually give an option for one year for the agreed upon amount, and an additional year for the same amount. Anything after that has to be re-negotiated from scratch.
Do I send these agreements to a lawyer before I sign them? Historically, no, because the real negotiating comes later. However, I have changed my mind for reasons I will explain later.
The final contracts are mostly legal boilerplate with the specific amounts, payment schedule, credits, residuals, rights regarding sequels and ancillary materials and arbitration options plugged in. This is where you need a lawyer. When I worked with Tim Ratajczak, a lawyer friend from his day job would go through the contracts. And, yes, you should get a lawyer as well before you sign a contract. For me, the main problem was never the contract, but what to do after a production company refused to honor the contract.
Here's a little Hollywood horror story for you. I was commissioned to write a script for a producer who shall remain nameless.* He called me and asked if I wanted two gross points, after distribution fee (in this case 10%), instead of my usual five net points. Being no idiot, I said yes. (I have to admit I discussed it with some folks first. It seemed too good to be true.) I wrote the script, they produced the film and it received wide retail release. Walmart, Target, Red Box, Christian book stores, you name it. So far so good, right? Well, keep reading.
Near the end of the first quarter after the release of the film I get a call from the company accountant about something else. Afterwards, I say, hey, I should be getting a check on the recent film soon. The accountant says no, it hadn't broken even yet. I said I had gross points. He said no, I had net points. I said check the contract. He repeated that I had net points. So I sent an email to the partners to report what the accountant had said. I immediately got a call back from the producer. He acknowledged I had gross points, but he wanted to change the terms. He wanted to change the contract from two points after the distribution fee alone to two points after the distribution fee and the freaking P&A! That, my fellow screenwriters, is a rather substantial change. By adding the P&A costs into the equation, I would essentially be reduced to two net points! Not knowing what to say, I told him I would think about it. The truth is I didn't know how to respond. I was speechless. I was already growing cynical, but even I couldn't believe they would do that!
The next day I get another email from the accountant reminding me that I had net points. That was it. I wrote back, copying the partners, saying I wanted my two gross points. Everyone got an email back from the producer saying that, yes, I had indeed been given gross points, but we were negotiating a change. (Glad I kept that email! It will come in handy one day.)
Then the producer called me and said, "Sean, I don't care what I said to you personally or what's written in that contract. We will never pay you those points, and if you keep it up, you're going to have to talk to someone else." By someone else, he meant a lawyer.
You see, when someone refuses to honor a contract, it doesn't matter if Clarence Darrow or Alan Dershowitz or Cato the Elder negotiated the document for you. It all comes down to whether you are willing to sue to enforce it. I have lawyer friends and lawyer relatives, but they all live here on the East Coast. I did not have a West Coast lawyer. Plus, I had to weigh the costs. A lawsuit would be very expensive. I would have to pay the lawyers by the hour. Since I had no idea how much income the film had generated, I had no idea whether the lawsuit would cost me more than I would get back in return. Additionally, even if the film was profitable, I had to assume that a company who would treat me in such an unethical matter would not have honest books. The cards were all stacked against me. I decided not to sue. So I renegotiated the contract. I took my traditional five net points and some upfront cash.
Taking that deal is my second biggest regret in the film business. (The biggest was not signing with CAA back in the 90s, but that's another story.) Now I have an entertainment lawyer I trust. A lawyer who would have been happy to tear into them. He probably would have done it on a contingency, too. Plus, I suspect that company would have settled after the first letter from the lawyer. If not out of sheer shame, than out of fear that they would lose their reputation if stories started appearing in the Hollywood Reporter about how they refused to honor their contracts. Oh, well. What can I say? I made a bad choice, and I have to live with it.
Another reason I regret not taking action is that my acquiescence probably encouraged the company to use similar tactics on other individuals. Somehow I don't think I am the only victim. It's like the whole Harvey Weinstein thing. If people had spoken up earlier, there would have been fewer ruined lives and careers.
Ironically, the film is now in the black. I am being paid on my net points. However, with every quarterly statement, it only takes some simple math to figure out how much I lost due to these underhanded dealings.
So how do you avoid getting into such a mess? First, join the union. Producers are less likely to take advantage of screenwriters in The Writers Guild of America, west. I have always worked non-union, but my goal now is to join the union. I have two scripts under option. I have agreements on both that, if they go into production, they will sign with the union and I will get to join the WGA,w.
Secondly, get a lawyer. And not just your uncle who does wills and divorces. You need a real entertainment lawyer.
A fellow screenwriter, who is about to get offered an option, asked if I really thought she needed a lawyer. I said yes. She asked how much that would cost. I said it could potentially cost her millions if she didn't.
That's my thoughts on contracts, but don't take my advice on anything.
Get a lawyer instead.
Other Writing Tips:
*Don't ask me for the name or even speculate about it. If I wanted to mention it now, I would have done so! It will all come out in my intended tell-all "Christploitation: Confessions of a Movie Missionary" after some ongoing events play out.
Do I send these agreements to a lawyer before I sign them? Historically, no, because the real negotiating comes later. However, I have changed my mind for reasons I will explain later.
The final contracts are mostly legal boilerplate with the specific amounts, payment schedule, credits, residuals, rights regarding sequels and ancillary materials and arbitration options plugged in. This is where you need a lawyer. When I worked with Tim Ratajczak, a lawyer friend from his day job would go through the contracts. And, yes, you should get a lawyer as well before you sign a contract. For me, the main problem was never the contract, but what to do after a production company refused to honor the contract.
Here's a little Hollywood horror story for you. I was commissioned to write a script for a producer who shall remain nameless.* He called me and asked if I wanted two gross points, after distribution fee (in this case 10%), instead of my usual five net points. Being no idiot, I said yes. (I have to admit I discussed it with some folks first. It seemed too good to be true.) I wrote the script, they produced the film and it received wide retail release. Walmart, Target, Red Box, Christian book stores, you name it. So far so good, right? Well, keep reading.
Near the end of the first quarter after the release of the film I get a call from the company accountant about something else. Afterwards, I say, hey, I should be getting a check on the recent film soon. The accountant says no, it hadn't broken even yet. I said I had gross points. He said no, I had net points. I said check the contract. He repeated that I had net points. So I sent an email to the partners to report what the accountant had said. I immediately got a call back from the producer. He acknowledged I had gross points, but he wanted to change the terms. He wanted to change the contract from two points after the distribution fee alone to two points after the distribution fee and the freaking P&A! That, my fellow screenwriters, is a rather substantial change. By adding the P&A costs into the equation, I would essentially be reduced to two net points! Not knowing what to say, I told him I would think about it. The truth is I didn't know how to respond. I was speechless. I was already growing cynical, but even I couldn't believe they would do that!
The next day I get another email from the accountant reminding me that I had net points. That was it. I wrote back, copying the partners, saying I wanted my two gross points. Everyone got an email back from the producer saying that, yes, I had indeed been given gross points, but we were negotiating a change. (Glad I kept that email! It will come in handy one day.)
Then the producer called me and said, "Sean, I don't care what I said to you personally or what's written in that contract. We will never pay you those points, and if you keep it up, you're going to have to talk to someone else." By someone else, he meant a lawyer.
You see, when someone refuses to honor a contract, it doesn't matter if Clarence Darrow or Alan Dershowitz or Cato the Elder negotiated the document for you. It all comes down to whether you are willing to sue to enforce it. I have lawyer friends and lawyer relatives, but they all live here on the East Coast. I did not have a West Coast lawyer. Plus, I had to weigh the costs. A lawsuit would be very expensive. I would have to pay the lawyers by the hour. Since I had no idea how much income the film had generated, I had no idea whether the lawsuit would cost me more than I would get back in return. Additionally, even if the film was profitable, I had to assume that a company who would treat me in such an unethical matter would not have honest books. The cards were all stacked against me. I decided not to sue. So I renegotiated the contract. I took my traditional five net points and some upfront cash.
Taking that deal is my second biggest regret in the film business. (The biggest was not signing with CAA back in the 90s, but that's another story.) Now I have an entertainment lawyer I trust. A lawyer who would have been happy to tear into them. He probably would have done it on a contingency, too. Plus, I suspect that company would have settled after the first letter from the lawyer. If not out of sheer shame, than out of fear that they would lose their reputation if stories started appearing in the Hollywood Reporter about how they refused to honor their contracts. Oh, well. What can I say? I made a bad choice, and I have to live with it.
Another reason I regret not taking action is that my acquiescence probably encouraged the company to use similar tactics on other individuals. Somehow I don't think I am the only victim. It's like the whole Harvey Weinstein thing. If people had spoken up earlier, there would have been fewer ruined lives and careers.
Ironically, the film is now in the black. I am being paid on my net points. However, with every quarterly statement, it only takes some simple math to figure out how much I lost due to these underhanded dealings.
So how do you avoid getting into such a mess? First, join the union. Producers are less likely to take advantage of screenwriters in The Writers Guild of America, west. I have always worked non-union, but my goal now is to join the union. I have two scripts under option. I have agreements on both that, if they go into production, they will sign with the union and I will get to join the WGA,w.
Secondly, get a lawyer. And not just your uncle who does wills and divorces. You need a real entertainment lawyer.
A fellow screenwriter, who is about to get offered an option, asked if I really thought she needed a lawyer. I said yes. She asked how much that would cost. I said it could potentially cost her millions if she didn't.
That's my thoughts on contracts, but don't take my advice on anything.
Get a lawyer instead.
Other Writing Tips:
*Don't ask me for the name or even speculate about it. If I wanted to mention it now, I would have done so! It will all come out in my intended tell-all "Christploitation: Confessions of a Movie Missionary" after some ongoing events play out.
Preview my horrifying new novel Chapel Street on Amazon:
Listen to me read some chapters here:
Chapel Street - Prologue - My Mother
Chapel Street - Chapter 1 - RestingPlace.com
Chapel Street - Chapter 2 - Elisabetta
Chapel Street - Chapter 3 - The Upload
Chapel Street - Chapter 4 - The Kobayashi Maru
Let's stay in touch:
Chapel Street - Prologue - My Mother
Chapel Street - Chapter 1 - RestingPlace.com
Chapel Street - Chapter 2 - Elisabetta
Chapel Street - Chapter 3 - The Upload
Chapel Street - Chapter 4 - The Kobayashi Maru
Let's stay in touch:
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