Entertainment Law - Your Screenwriting Legal Questions Answered
SEIGEL ON LEGAL
Post Your Questions to Entertainment Attorney Robert L. Seigel
Robert L. Seigel is a NYC entertainment attorney and a partner in the Cowan DeBaets Abrahams & Sheppard LLP law firm which specializes in the representation of clients in the entertainment and media areas.
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March 2010
Question by Ben, TX:
What is the method by which one would secure the rights for a remake of an older movie?
Bob's Reply:
Ben: You would check the copyright notice on the original film; however, that is just a starting point since the rights to the original film may have been transferred one or more times over the years. Ultimately, you would have to conduct or commission a copyright search from the U.S. Copyright Office directly or through a law firm or a copyright search service such as Thompson & Thompson to receive the information required to determine the chain of title on the rights to the original film.
In addition, you would have to check with the current owner of the rights in and to the original film to determine if it or someone else has the right to remake the original film since some distributors only have the rights to the original film itself especially if the distributor acquired the rights to the film from a third party and it did not finance and produce the film itself.
Furthermore, you would have to determine who owns the rights to the screenplay of the original film since you probably would be using some, many or all of the elements of the screenplay to the original film.
If the screenplay for the original film is based on a pre-existing work, then you would have to determine who holds the motion picture and television rights to the pre-existing work which served as the basis for the screenplay for the original film. The owner of the rights to the original film may hold such motion picture and television rights to make a remake of the original film or such rights may have reverted to the original rights holder of the underlying work under the terms of the agreement between the original holder of the motion picture and television rights in and to the film and the producer or the distributor of the original film.
As part of your due diligence, you should request the documents which represent the chain of title to the original film and its screenplay from current owners of the rights to the original film and its screenplay. Such confidential information as payment amounts could be redacted or blackened in the copies of such documents sent to you.
If the original film’s rights holder is a person or entity in a country outside the U.S., then the copyright laws of such countries are also a factor which you may have to consider in determining any chain of title issues.
Question by Keith, USA:
I got signed/dated documents recently from a prolific author giving me rights in perpetuity to adapt screenplays from all his books for free. Do you recommend against my entering a finished screenplay into competitions or finding an agent who will protect me from 'over saturating' the market by sending it to too many people who won't read it? How does one find an honest, reputable agent who deals with 'newcomers' to the business?
Bob's Reply:
Keith: First off, congratulations on your deal since it is highly unusual to secure the rights to all of a third party’s works for no financial consideration. You should have an agreement with the author even if there is no monetary consideration paid by you to have secured the motion picture and television rights in and to all of this author’s works. This document will be required as you approach financiers (especially within the motion picture and television industries), distributors, licensees and sales agents for any project based on the author’s works.
Secondly, you can submit your adaptation of the author’s works to competitions, producers and agents since these are the persons and entities who would be necessary to move your project forward. Try to do some due diligence work about the persons or entities to which you are submitting in terms of their credits and reputation by utilizing such tools as the internet and information from other writers or others in the industry.
In addition to your strategic submissions of your adaptation, you should make sure that the version of your adaptation is the best and most complete one since most people and those working for companies do not want to read a script a second time unless it is has been materially changed and, more importantly, there is a new element to the project such as a known director or potential cast members who have acknowledged either themselves or through their representatives that they will appear in the project.
Your question regarding how you would find an agent is one I hear almost everyday. Most agents have anywhere from twenty to fifty clients to represent and service; therefore, you may want to look for a manager who often works as a career counsellor to writers and directors. Often these managers become attached as producers on their clients’ projects since they can do so (unlike agents who are prohibited from acting as producers. Check the internet for writing websites and blogs. Network and let people know that you are seeking representation in a non-harassing manner, of course) and make it clear that you are not only bringing your writing talent to the table but the rights to an author’s entire body of work.
One side note regarding adaptations: they are not best types of writing samples since you are working with someone else’s characters and plotlines instead of creating your own characters and plotlines. Therefore, you should work on original screenplays as well.
February 2010
Question by Richard Cale, AZ:
I have been with my agent for two years now and in that time he managed to sell one of my scripts. Nothing has happened with this project and I am looking for a new agent. My question is, what happens down the line if I have a new agent but the old project gets produced? Who gets the commission?
Bob's Reply:
Richard: The fact that your agent sold one of your scripts within the initial term of your agreement with the agent is usually a good sign. That being said, you would have to review your agreement with your agent to determine if and how such issues as contract termination and the effects on properties which your agent submitted during the agreement’s term would be addressed. An issue usually arises if your former agent submitted your project to XYZ Studio and then the agreement with your agent has been terminated.
Depending on the terms of your agreement with your former agent, your former agent may be entitled to receive a commission even after the agreement’s termination since the former agent initially brought the project to XYZ Studio. Hopefully, this sort of non-circumvention provision in your former agent’s agreement with you is for a limited period of time and not in perpetuity.
In another and more troublesome scenario, your former agent may have made a deal with XYZ Studio during the agreement’s term such as XYZ Studio having optioned your project and then XYZ Studio decides to exercise its right to purchase the rights in and to the project after your agreement with your former agent terminates. Depending on what is stated in your agreement with your former agent, your former agent could be entitled to receive his or her entire commission even if the option is exercised after your agreement with your former agent has terminated but before the exercise of the option by XYZ Studio.
After all, your former agent made the deal. Right?
Your new agent may understand that that your former agent may be entitled to receive a commission if a deal had been made regarding your project during the term of the former agent’s agreement in which the deal addressed the option and its exercise as well as the payment of the purchase price for your project. However, if your former agent submitted your project to XYZ Studio but the actual deal was made with XYZ Studio after your agreement with your former agent had ended and now the new agent negotiates the deal on your behalf with XYZ Studio, your new agent would not be too pleased having the commission paid to your former agent.
Therefore, first check your agreement with your agent now and see if these scenarios are addressed in the agreement or could be addressed (especially the second scenario) in any revised settlement agreement with your soon to be former agent. If such renegotiation does not occur and your former agent would be entitled to the commission, then you may be able to get your former agent and your new agent agree to split the commission on that project.
You should have an entertainment attorney review your current agreement in light of these and other issues.
Question by Kim Frost, UK:
A company in Los Angeles has shown interest in one of my screenplays and want to meet me and possibly pay me to do rewrites. Do I need to obtain a working visa if I perform this assignment while in the US? Are there any other legal issues I need to know about?
Bob's Reply:
Kim: First off, I recommend that you consult with an immigration attorney in the U.S. or where you reside since he or she works in this field day in and day out and can recognize the nuances of when a temporary work stay in the U.S. becomes an open-ended one.
If your screenplay is being optioned or purchased by this U.S. producer, there is no immigration issue since you have not rendered services for the U.S. producer yet. If your screenplay is optioned or purchased by the U.S. producer and you render services where you reside, there should be no immigration issue. However, if you would be rendering services for the U.S. producer while your are in the U.S., you would have to obtain a work visa which would cover the time you are rendering such services in the U.S. Many people are tempted to obtain a tourist visa or no visa, work on the side and take their chances; however, these people do such things at their own legal peril and the consequences may effect their ability to stay or even live in the U.S. in the future.
If your stay working in the U.S. continues past the term of the work visa and you want to permanently reside and work in the U.S., you would have to apply for a green card. Usually, in order to obtain one, you would be claiming to be an “artist” or one with unique abilities (as defined under U.S. immigration law). You would work with your immigration counsel to secure letters of recommendation and other written evidence that you are a solidly professional artist or one who has unique abilities working in your field.
On a separate note, those who render services outside their country of residence, often have to deal with double taxation: once by their country of residence where you receive your income for the work rendered outside their country of residence and taxed again by the country where they rendered the services. This situation has been resolved in the past by those rendering services outside their country of residence paying income tax once in one country and receiving a tax credit from the other country which can be applied against any taxes which are due by them.
Please discuss this issue with your accountant.
Good luck.
January 2010
Question by Reed Hall, CO:
Can the public statements of public figures be freely incorporated into the dialogue of fictional characters in a screenplay or would this constitute a violation of some sort? For example, can I take the verbatim words spoken or written by a TV televangelist or religious leader or church spokesman (from a public speech or interview or broadcast or book) and put those words into the mouths of purely fictional characters? If Pat Robertson or Jerry Falwell once stated XYZ, can I have a wholly fictitious screenplay character likewise utter XYZ (verbatim) -- given that my fictitious character is clearly not otherwise "based upon" Robertson or Falwell?
Bob's Reply:
Reed: There are two fundamental principles concerning copyright which you should bear in mind: (1) copyright law protects expressions of ideas and not ideas per se; and (2) copyright occurs on creation.
Many public statements come from speeches which were created as the expression of ideas by their creators and “fixed” in some manner whether it is on paper, on audio and/or visual recordings or on a hard drive ready for printing. Such speeches are protected by copyright law and any use of such speeches beyond a use which could be deemed an incidental or ”fair use” of the work (which is a defense to copyright infringement and a separate topic entirely) or pass muster under a First amendment argument would constitute copyright infringement.
Many writers and producers have wanted to use Martin Luther King Jr.’s speeches but they have met some resistance from Dr. King’s estate (including Steven Spielberg who is planning a Martin Luther King biopic). Placing such copyrighted speeches in the mouths of fictitious character also could bring a claim for copyright infringement. If a person’s speech is being used for a specific purpose such as parody, the use may be a permissible one as long as not to much of the speech is taken by the creator of a work.
If someone adlibs a speech extemporaneously, one could make an argument that such speech is not a copyrighted work since it is not fixed in some manner. However, once such extemporaneous speeches are fixed in a medium such as an audio or audio-visual recording, then the work has been not only created but fixed by recording.
Although the speeches or interview responses may be expressions subject to copyright protection, the ideas stated in the speeches are not subject to copyright protection. Therefore, if a fictitious character paraphrases the ideas found in a person’s speech, the likelihood of a copyright infringement claim diminishes and can even disappear depending on the nature of the fiction character which could give rise to separate personal rights claims such as defamation and rights of publicity if the fictional character is too recognizably similar to the actual speechmaker.
This is a complicated area of the law and seeking legal counsel in such matters is a prudent and necessary measure.
Question by Monica Taylor, IL:
If another writer is hired to rewrite your script and then demands sole credit, how do producers and/or arbitrators decide how credit is split into shared screenplay and story or individual screenplay and story credits? Do they go by all drafts by both writers? What if all the dialogue has changed but the scene to scene structure remains the same?
Bob's Reply:
Monica: Most writers eventually realize that the issue of credits is more than one of vanity or ego; credits determine a writer’s precedent for future writing assignment as well as indicate if and how a writer will be compensated and credited if there are subsequent productions based on a screenplay such as a remake, sequel, prequel or television movie or series.
If a producer is a Writers Guild of America (WGA) signatory and writer (or a writing team as applicable) is a WGA member or is deemed a “professional wrier” (more on that a little later), then the rules of the WGA Minimum Basic Agreement (MBA) would apply concerning the determination of credits. If there is a dispute concerning the credits or a producer, director or production executive intends to take a writing credit, there is a WGA arbitration mechanism for the determination of credits in which anonymous WGA member writers serve as arbitrators and read all of the drafts of the contributing writers and make a credit determination. Provisions of the WGA MBA and summaries are listed on the WGA website (www.wga.org) under “Writer’s Resources” under the “Credits” tab (i.e., the Credits Survival Guide and the Screen Credits Manual (or the Television Credits Manual as applicable).
A writer may be a “professional writer” but not a WGA member if a writer is selling material to a WGA signatory and the writer had been employed previously for a total of thirteen weeks as a television or theatrical motion picture or television writer or received credit as a writer on a television or theatrical motion picture (including a television series), or received credit for a professionally produced play or a published novel.
Even if a production company is not a WGA signatory and a writer is not a WGA writer or a “professional writer,” the parties can agree by contract to adhere to the rules of the WGA MBA regarding all or some issues such as credit determination.
The parties will have to address such issues as the number of writers on a motion picture, how much each writer contributed to the final screenplay, whether one or more of the writers is also a producer, director or a production executive as well, whether the screenplay is based on a pre-existing source or is original in nature.
If the non-WGA signatory production company and the non-WGA/ non-professional writer decide that the WGA MBA rules will not apply regarding their agreement, then the matter of such issues as credit are a matter of negotiation between the parties.
Regarding your question and assuming the production company and the writer are subject to the WGA MBA or, if not, they agree contractually to comply with such credit determination rules, there would be a need to determine if the initial script was an original screenplay (i.e., in which no other pre-existing source material except for research information is in existence) or not. If the initial writer wrote an original screenplay, then any subsequent writer (which includes a writing team) would be required to have contributed a minimum of fifty percent to the final screenplay. In the case of a non-original screenplay, then the subsequent writer or writing team would need to have contributed a minimum of thirty-three percent towards the final screenplay.
As noted in the Screen Credits Manual:
“The percentage contribution made by writers to a screenplay obviously cannot be determined by counting lines or even the number of pages to which a writer has contributed. Arbiters must take into consideration the following elements in determining whether a writer is entitled to screenplay credit:
* dramatic construction;
* original and different scenes;
* characterization or character relationships; and
* dialogue.
It is up to the arbiters to determine which of the above-listed elements are most important to the overall values of the final screenplay in each particular case. A writer may receive credit for a contribution to any or all of the above-listed elements. It is because of the need to understand contributions to the screenplay as a whole that professional expertise is required on the part of the arbiters. For example, there have been instances in which every line of dialogue has been changed and still the arbiters have found no significant change in the screenplay as a whole. On the other hand, there have been instances where far fewer changes in dialogue have made a significant contribution to the screenplay as a whole. In addition, a change in one portion of the script may be so significant that the entire screenplay is affected by it.”
Assuming the subsequent writer (or writing team) met the minimum contribution thresholds, then the credits could state: “Written by Writer A and Writer B” for an original screenplay or “Screenplay by Writer A and Writer B” for a non-original screenplay. (Please note that writers on a writing team have the ampersand or “&” between their names and that non-team writers have the “and” between their respective names.)
If the WGA MBA credits rules are not in effect, an initial writer could have it stated in his or her agreement with a producer that the writer will receive no less than a certain credit such as “screenplay by” or “story by” but the credit determination would be decided by the production company.
I represented a motion picture feature in which an original screenplay was written by two writers individually and both writers wanted sole writing credit. Since the production company was not a WGA signatory and neither writer was a WGA member or a “professional writer,” the parties could not use the WGA arbitration infrastructure. Therefore, the writers and the production company agreed that one person would be mutually approved as an arbitrator and both writers would submit a certain number of drafts for the arbitrator to read as the basis of the arbitration’s determination which would be final.
However, the production company stated that the dispute is between the writers and not with either of the writers and the production company; therefore, the writers would have to split the arbitrator’s fee. A few days later, both writers agreed to share the screenplay credit and not utilize the arbitrator’s services or have to share in the payment of the arbitrator’s fee.
December 2009
Question by Christian Moore, GA:
I have interest in my script from a company that makes movies solely for internet distribution. What are the kind of details I need to know about this business model in terms of signing an agreement, payment and royalties and should there be a clause in case it was ever picked up for a theatrical release?
Bob's Reply:
Christian: I will assume that you are stating that the company makes movies that are like feature-length “webisodes” and not conventional features which are being delivered via download or streaming. Since web projects have to hold the viewer’s attention when he or she is at the computer, the web projects tend to be shorter in length, Sometimes a project is divided into separate webisode segments and then edited back into one project for television or DVD exhibition.
Most internet projects have very low budgets compared even to independent film features and upfront compensation generally will be nominal. One issue to consider is whether you would be paid a flat fee only or a per view royalty or a combination of both forms of compensation. You would have to find out how the producer/website owner measures views. Your agreement with the company should have provisions if and when the internet project is produced in such forms as a feature length film, television film or television series and how your compensation would change with a possible bonus or change in compensation structure to that of more conventional media projects on television or DVD or in theatres.
In addition, writers should try to attach themselves as the writers of such subsequent productions. A common provision is many writers’ agreements concerns if they write a television movie but it is distributed as theatrical feature domestically or overseas, that the writer would receive additional compensation. Your involvement in such subsequent projects would be addressed in your agreement under agreed upon stated terms with some element of negotiating for certain details later in good faith by the parties.
As a guide, writers should consult, the WGAW website concerning “new media” for the “WGA Guide To New Media” which covers projects written for the internet or mobile devices (i.e., “mobisodes”) (www.wgaw.com) even if the writers would not qualify as being covered under the WGA New Media Agreement since the writer may not be a WGA member or a “professional writer” as defined by the WGA. The guide covers such issues as compensation, credit and separation of rights (i.e., such as writers receiving passive payments if a project should be developed and produced as a subsequent media production even if the writer is not involved in writing such subsequent projects based).
Question by Joseph Baker, TX:
I have an idea for a stage play that would also make a good movie. What do you advise to pursue first, the stage production or the movie? What's easier to get development and/or production financing for?
Bob's Reply:
Joseph: I used to have this debate with an attorney colleague regarding which is less difficult (note I do not say “easier”) to develop and fund: a stage play or an independent film. I would argue that it is the stage play since the development time can be shorter for shows (though some plays and musicals require years of development between rewrites, staged readings and showcases or regional productions), and the investors often feel better in investing in a show since there are opening nights and cast meetings to attend (although opening night could be closing night as well).
There is a connection of excitement experienced by investors in a live production along with a certain pride of ownership that when they are involved in funding a play as being a “producer” or “associate producer” of a show. Even in this recession based economy, there are still high net worth individuals who want to be part of a show. On the other hand, films can take stretches of time to develop, fund and even shoot, and there is less of a connection between an investor and the often time-consuming process of “hurry up and wait” on film sets.
Although a show may close and still have a life at regional theatres and in “stock and amateur” productions, one can argue on behalf of films since there are more revenue outlets for a film ranging from theatrical, DVD, television, internet streaming/download, etc. In addition, there are certain parts of the country where people reside where the allure of filmmaking is alive and well and they are less acquainted with plays and musicals except if there are strong regional theatres in such areas.
Theatre producers have been aware of the need for “seed money” or “front money” during the development of a show so that they can acquire options on shows, prepare the appropriate financing documents, engage a general manager to prepare a budget and advise, perhaps a casting director and a director along with scheduled stage readings and backers’ auditions. This “front money” model has been applied by motion picture producers gradually only over the past few years since some investors appear to be more willing to invest front monies in a show rather than a film for the reasons stated above.
Due to technological advances in filmmaking such as shooting and editing digitally, the costs of an independent film and an Off-Broadway show can be somewhat comparable with budgets in the hundreds of thousands of dollars. With the advent of regional theatres, not for profit theatre organizations and Off-Off- and Off-Broadway venues, there are numerous outlets for shows while the number of conventional venues for independent film screens has narrowed for non-studio or non-mainstream fare (although there has been a growth in alternative exhibition sites other than movie theatres such as universities, libraries, community centers, etc. for such projects).
In some ways, produced plays are like published books since both types of work indicate that someone other than the writer sees the merit in the writer’s work and has expended time and money in having it produced or published.
The path between the adaptation of a show into a screenplay for a film (and vice versa) has been more traveled by producers over the years. One example would be Aaron Sorkin’s play “A Few Good Men” which was originally produced as a play before it was produced as a film with a few of the play’s key producers attached as producers and/or executive producers of the film.
The key issue for a writer is to determine whether a story can be developed as a show as well as a film. Is the story dialogue or visually driven? How will these different versions of a story be physically produced and budgeted? Speaking with producers in both media and line producers and the theatre’s equivalent, general managers (who are often stage producers as well) would be helpful.
November 2009
Question by James Heath, NJ:
My question is about script submission protocol. I have a script ready to send out but don't have an agent. Should I try and secure an agent or manager before sending it to producers or does a "good" producer not really care about who submits the screenplay, being more interested in whether it is good or not?
Bob's Reply:
James: As a general rule, I believe it is usually better if someone else submits a script on a writer’s behalf rather than a writer submitting it himself or herself unless a writer has established a contact to or with an agent, a manager or a production company or due to referral from a friend or colleague to one of those aforementioned groups. When someone else either provides a recommendation or referral to a manager, an agent or a production company, this usually means that someone (other than you) sees merit in your talent and/or the script so that he or she is willing to put his or her name and reputation on the line. If someone submits or recommends scripts indiscriminately just “to see what sticks,” that reputation filters down to managers, agents and production companies and those scripts generally are placed last on the proverbial pile or perhaps not read at all.
Managers, agents and production companies generally prefer submissions through someone in the industry such as entertainment attorneys or managers or agents for a production company not due solely to the strong writing sense of such representatives (although many representatives have a keen eye for choosing and evaluating material) but also that such representatives serve as a filter or gatekeeper since no manager, agent or production company can review all the submissions that they receive. Besides this imprimatur of approval or support, submissions by representatives tend to indicate that a writer is not on his or her own and that he or she has someone to look out for the writer’s interests and rights. In addition, it is easier for agents, managers and production companies to be more candid about a writer’s script with a third party such as a representative than with the writer himself or herself since those discussions tend to become awkward for many who receive submissions.
Although it has become more difficult for writers to submit their work due to possible legal issues such as copyright infringement claims, a writer can cultivate a contact with a manager, an agent or a producer at some event that can be parlayed to an opening for a submission, especially if there is a follow up query letter or e-mail which reminds the contact of meeting with the writer.
A writer can enter a script in one of the more noted screenwriting contests and competitions such as the Nicholls Fellowship and the Chesterfield or those associated with festivals such as the Nantucket Film Festival, the Austin Film Festival and the Slamdance screenwriting competition. If a writer wins the contest or places high, that contest can serve as that imprimatur of approval which may attract a manager’s, an agent’s or a production company’s attention.
Writers should do their research and get a sense of what a production company has produced in the past so that he or she does not submit a horror script to a producer who usually works with noted indie directors on their own projects generally. “The Hollywood Creative Directory” or imdbpro.com are good sources for such information as well as other parts of the internet. A writer’s research can help a writer ascertain the track record of producers to whom a writer may want to submit or a producer who approaches a writer with interest in a writer’s script.
Writers should have their scripts filed for registration with the U.S. Copyright Office before submitting their scripts.
Since many agents, managers and production companies frequently want a writer to sign a submission release, you should read my July 2009 Q & A on the subject.
Question by Penny Anderson, London:
As a writer based in the UK, what pitfalls do I face in getting my script read and produced in Hollywood that US-based writers do not? Is it much more important to have representation or is it still possible to get optioned through unsolicited submissions and success at screenwriting contests? Are there any potential legal issues international writers have to deal with?
Bob's Reply:
Penny: In general, all writers encounter the same or similar problems in submitting their work to production companies.
Although under the Berne Convention (to which many countries including the U.S. are a member), if a non-U.S. writer wants to seek some form of judicial relief, the U.S. must accord the non-U.S. writer the same degree of protection as that non-U.S. writer has in his or her own country of origin.
However, the non-U.S. writer can avail himself or herself of certain additional benefits under U.S. copyright law.
Under U.S. copyright law, copyright protection automatically exists from the moment of creation for any work that is “fixed” such as in a writing or recording. However, even though copyright protection automatically exists, and copyright registration is no longer legally required, there are significant benefits for the copyright owner to register their his or her creative work with the U.S. Copyright Office in a timely manner, whether the copyright owner is U.S.-based or not.
First, in the United States copyright registration is a prerequisite for bringing a copyright infringement lawsuit. A copyright owner cannot proceed with a copyright infringement lawsuit for damages unless the work has been registered.
If he or she acts proverbially pound wise and penny foolish, a copyright owner may not want to spend the money (and time) in registering the work before an infringement actually occurs since a copyright owner can register the work after it has been infringed. However, such thinking could prove to be very costly and damaging to the copyright owner. If a copyright owner wants to pursue an infringement action for monetary damages, the copyright owner would have to pay a significantly higher registration fee to expedite the registration of the work so that the lawsuit could be filed for monetary damages and demonstrate to the U.S. Copyright Office the immediate need for expedited filing (such as unauthorized distribution of the work).
Still, a copyright owner’s late registration with the U.S. Copyright Office would restrict a copyright owner from recovering “statutory damages” as well as legal costs and attorney’s fees. What is a timely manner for a copyright owner to file for copyright registration? It is when a copyright owner files for copyright registration prior to an infringement taking place or within three months from the publication date of the work. If the infringement occurs either prior to the effective date of copyright registration or after the three-month grace period, then the copyright owner will not be entitled to receive those statutory damages, legal costs and attorneys' fees. The effective date of copyright registration is the date when the U.S. Copyright Office receives the complete registration application that consists of the application, fee and deposit copies.
The significance of statutory damages is that it permits an award of special damages in a successful infringement lawsuit and the copyright owner does not have the burden to prove actual damages. The reasons why a copyright owner may elect to receive statutory damages rather than actual damages is that in many instances proving actual damages is very difficult or the profits of the infringer are very small. The amount of statutory damages that may be awarded is discretionary with the court and will depend upon the extent of the willful and harmful nature of the infringement with more deliberate and more damaging infringements resulting in a greater award and less recoveries for so-called accidental or innocent infringement.
Furthermore, the legal costs in any copyright infringement lawsuit, particularly attorneys' fees, are often extremely expensive since there is no small claims court for copyright infringement. When a copyright owner registers the work in a timely manner, the court also has the discretion to award attorneys' fees and legal costs to the copyright owner. This is a key distinction for U.S. and non-U.S. copyright owners since in such countries as England, the losing party pays for its own legal fees and expenses as well as those of the prevailing party. In the U.S., each party tends to pay its own expenses. U.S. copyright law permits an exception to this U.S. legal trend.
The third and one of most important reasons why the copyright owner should register a copyrighted work is that the certificate of registration serves as prima facie evidence or presumption that the work is original and is owned by the registrant of the copyrighted work. This becomes especially important if it becomes necessary for the copyright owner to obtain a preliminary injunction against a copyright infringer, such as the immediate termination of the distribution of the infringer's work. However, a copyright registrant should bear in mind that this presumption is not absolute; it can be rebutted or refuted by another party. This presumption of validity will only apply if the work has been registered within five years from the publication date.
Therefore, by registering a copyrighted work in a timely manner, the copyright owner has the ability to bring a lawsuit or just the possibility of a lawsuit when it is needed most by a copyright owner. Prior to a copyright owner bringing an infringement lawsuit, the copyright owner not only can send a "cease and desist letter" to the infringer but also be armed with the knowledge that a lawsuit could be immediately filed and that: (i) the validity of originality and ownership of the work will be presumed, (ii) statutory damages may be awarded, and (iii) legal costs and attorneys' fees may be recovered.
When a copyright owner has such legal ammunition, an infringer will frequently be more amenable to the copyright owner's demands without the copyright owner needing to file a lawsuit.
Regarding script submission issues, please read my July 2009 Q & A.
October 2009
Question by Bethany Crown, ID:
What protection for a screenwriter does the Writers’ Guild offer and how does being a member affect negotiation of contracts? Can anyone apply to be a member or do you first have to have a script produced or just optioned or purchased?
Bob's Reply:
Bethany: There are certainly several benefits for a writer to become a Writers Guild of America (WGA) member. There are standard terms which govern a relationship between a WGA signatory production company and a WGA member including minimum rates for various writing services. The WGA signatory and the WGA member can include provisions not covered by the WGA Minimum Basic Agreement (MBA) such as profit participation as long as there is no conflict between a term in their agreement and the MBA. If there is such an inconsistency, then the MBA term would govern.
There are health and pension benefits for WGA members that can pay their dues and work enough to continue to qualify for such health benefits.
If there is a dispute concerning writing credits, there are WGA rules and an arbitration system to determine who receives writing credit on a WGA project.
However, a writer cannot just sign up to be a WGA member. The writer has to render a sufficient amount of writing services for or have the rights to a screenplay or teleplay acquired by a WGA signatory to be eligible for WGA membership thereafter.
In addition, a writer has to bear in mind that once a writer becomes a WGA member, that writer only can work for WGA signatories. If a WGA member works for a non-signatory production entity, then that WGA member can be fined or suspended by or even expelled from the WGA.
At the start of a writer’s career, a writer may want the flexibility of being able to work for WGA and non-WGA signatories. If that writer does develop a writing career eventually, the writer may not want to work for non-signatories and have to “re-invent the deal” each time he or she is engaged to render writing services or has the rights to a script optioned or purchased. In that case, it makes sense for a writer to become a WGA member.
If a writer has had a play produced or a book published, the writer can be deemed to be a "professional writer" and the WGA signatory would have to offer the WGA minimums concerning compensation to the writer at the writer’s insistence.
You should check the WGA website (www.wga.org) for further information.
Question by Darren Allen, CA:
What kind of wording would I need to be wary of in a contract with regard to the producer replacing me as the principle writer? Is there a way to word an agreement so I remain the only writer? If not, how can I make sure I at least get a "screenplay by" credit?
Bob's Reply:
Darren: If a writer is working for a WGA signatory production company or a company engages a WGA writer during the development and/or production process and the company is required to become a WGA signatory, then there is no manner in which a writer can be guaranteed contractually any writing credit (let alone a sole writing credit) since there are WGA rules and an arbitration procedure to resolve credit disputes. Arbitration is usually automatic if a producer or a director tries to take a writing credit to prevent "credit theft" by a producer or a director unless he or she has legitimately earned the writing credit.
However, if a writer is working for a non-WGA signatory, then the issue of credit is truly a matter of negotiation. On rare occasions, a writer may be guaranteed a screenwriting credit, which may be sole or shared with another writer(s) or, at the least, a "story by" credit by contract. Still this type of provision can place a burden on a producer who may want to engage another writer(s) even if the subsequent writer(s) is a not WGA members since there are very few writers who are willing to render writing services and not have a possible chance of receiving some form of writing credit, unless a writer is being very well paid. These types of writers are more like "script doctors" who work for the compensation and consider the credit as less important. (John Sayles is well compensated for his services as a script doctor for such films as "Apollo 13". It helps him to finance his independent films directed by him.)
It is very difficult to ensure that a writer will not be replaced unless the project is a true writer/director “auteur” type of project and a producer agrees to that condition. Even in those instances, a producer may insist that, after a certain amount of time, the producer has the contractual right to engage another writer in the producer’s discretion or perhaps with the approval of the writer (often also a producer or a director) provided that the writer does not withhold his or her approval unreasonably so as to frustrate the producer’s efforts to engage a new writer supposedly for a new perspective on the script.
A non-WGA signatory and a non-WGA member can agree to have the WGA credit rules apply to their contractual relationship even on a non-WGA project. However, if there is a dispute between writers or between a producer and a writer regarding credit, the parties cannot make use of WGA arbitration unless the producer becomes a WGA signatory and the writer(s) becomes a WGA member.
When two writers would not agree to share credit on a project I represented, I had to work with the writers and the producer to find someone qualified to act as a "WGA-like arbitrator" who would read a number of script drafts and then determine what would be the writing credits. However, when we informed the writers that each writer would have to pay one-half of the arbitrator’s compensation since they were the ones with the dispute, the writers suddenly discovered that sharing the writing credit was not such a bad thing at all.
September 2009
Question by James Villner, VA:
I would like to write about a real event in history in which some of the people involved are still alive today. Do I need to obtain a release from every living person in order to use their name in the story? Or do I not need to worry about this for a spec and leave that to the studio's legal team once my script is sold? Or.. would you simply advise me to change the names of all the characters and prelude the script with "based on true events"?
Bob's Reply:
James: Your question is one of the most problematical ones to analyze since many issues pop up throughout any discussion of real life events and attempts to fictionalize them in film, television or books. First off, when refer to "a real event in history," I am assuming that it is some form of a public event or an event that has been covered in other media such as a trial, an accident or a murder. If it is a private event that occurred sometime in the past, there is a greater need to obtain releases or permissions from living persons. I state "living" persons since one cannot defame or invade the privacy of a dead person. Those claims die with them.
There may be a right of publicity but that is usually trumped by First Amendment considerations in films, television and other media unless you are creating items or services to sell with one’s name, likeness or voice such as clothing.
If your event was covered by the media and you solely take the facts from the event, then
permissions would not be necessary in most cases. However, if you are using the expression of an author/creator or information that cannot be obtained from more than other than the author/creator, you may have to option and eventually secure the rights to that author’s/creator’s work such as a book or a newspaper or magazine article.
Back to the living people. If a living person has become a public figure through his or her own efforts and circumstances, there is a lower threshold for defamation or invasion of privacy claims than if a person is a non-celebrity or public figure who is not injecting himself into the public light. This often occurs with the friends and relatives of people who are in the public eye. You should get releases from them especially or de-emphasize their role in your story. Try to depict them in a neutral to positive light and only when they are relevant to the noted event.
Blogs and gossip aside, you should bear in mind that public figures have private lives with facts that are not disclosed or known to the public and which may lead to a possible invasion of privacy claim.
On a practical level, you can write a spec script concerning the event without getting the appropriate releases but you are possibly lowering the marketability of the project for an independent producer who will have to secure the services of an attorney to "vet" the script at an early stage to determine whether he or she should take on the project. (The producer will have to have this "vetting" process done anyway in order to secure what is called "errors and omissions" insurance in case someone brings a claim against the producer, the project’s distributor and even you as the author/creator). In a possible best case scenario, if you have a script and an agreement with a principal for their life story rights then obviously you have more leverage in dealing with a producer, network or studio.
You can change the names of the script’s characters and alter the events and then perhaps pitch your project as "inspired on a true story" as opposed to "based on a true story." However, please bear in mind if you just change the names, the subject may be recognizable nationally or even on a regional basis. You should discuss with your attorney whether the value of having the "true story" marketing hook justifies the possible liability issues that may arise.
This is just a brief and general discussion and a guide. Therefore, it is important to consult with an entertainment/media attorney so that any legal analysis can be done based on the specific circumstances of your situation.
Question by Lillian Bowers, MA:
I want to adapt a novel and contacted the author who showed some interest in his work being turned into a screenplay. What are the necessary first steps so both of us are covered further down the line? Assuming we strike out some kind of deal or contract and the script is written, what is the process of marketing the spec to studios and execs? By this I mean, do any of the rules change because it is based on a novel? Could it help us sell the project because the book has a proven track record? Should we "package" the spec in a different way?
Bob's Reply:
Lillian: The question you are asking may compel you as a writer of an adaptation to start acting as if you were a producer in which case you can pursue the shopping agreement in which you act as if you are the producer and the writer/owner of the underlying material would be treated as if he or she were the writer.
However, one of the differences with you as a writer and one who is acting in a quasi- producing capacity is that you are shopping a package of the underlying rights to the property and your adaptation as a package n which you and the author as the underlying rights holder would have to negotiate your own deals and hopefully coordinate them so that one party does not "kill" the deal by asking for a something which the other party would not grant.
Please bear in mind that once the shopping agreement’s term is over, then the rights owner can continue to shop his or her property but you cannot do so since you do not have any connection to the underlying rights of the Property (who is free to work with another adaptor whether the rights owner finds such writer or a potential producer brings in his or her own writer).
Good luck (and perhaps you should shift your focus to original screenplays which serve as the best example of a writer’s work since he or she creates the characters and the story).
August 2009
Question by Hal Simmons, Toronto:
What happens if a studio or production company buys your script with the "secret" sole intention of killing the project to avoid conflict in the marketplace with one of their own similar productions? Is this legal? Do screenwriters have some kind of protection against this?
Bob's Reply:
Hal: One of the best ways to prevent a studio, broadcaster or production company from acquiring the rights to a script and then putting it on the proverbial shelf is to have a reversion provision included in the rights purchase agreement. A reversion provision generally states that if a motion picture feature does not commence principal photography or is not completed by a certain time (such as anywhere from three years to ten years after the production company, broadcaster or studio acquired the screenplay rights), then the writer would have the right to reacquire the rights in and to the script.
However, there are several forms of reversion. The type of reversion which most writers prefer would be a reversion in which the rights in and to the script would be reacquired by the writer, and the writer and the production company, broadcaster or studio part company. However, most production companies, broadcasters and studios would insist that at a minimum that the writer repay or cause a third party (that is interested in financing and producing a project based on the writer’s script) to repay the purchase price for the script’s rights so that the production company, broadcaster or studio is not out of pocket for paying the purchase price for a script that it no longer owns.
The most problematical form of reversion which a writer may encounter is a reversion provision in which the writer must pay or causes a third party to not only repay the purchase price of the script to the initial purchaser of the rights but also repay or cause the repayment of any development costs incurred by the initial purchaser of the script’s rights. Such development expenses can include the fees paid by a production company, broadcaster or studio for the writing services provided by the writer or third party writers during the development of the script. Production companies, broadcasters and studios can charge interest on such expenses which would have to be repaid with the original purchase price and the development expenses incurred by the initial purchaser of the script’s rights.
One of the reasons that many scripts stay on a production company’s, broadcaster’s or studio’s shelf is that it is often too expensive for the writer to pay or get a third party to pay for these expenses which often can be in the six figure range.
The Writers Guild of America (WGA) has a provision in its Minimum Basic Agreement (MBA) which permits a writer member or a "professional writer" (as defined by the WGA) to reacquire the rights to his or her original script or rewrites to a writer’s script rendered during the option period of the original script under certain conditions which are stated in the WGA MBA.
Question by Todd Mason, CA:
I'm a first time writer-director and some interest has been shown in my spec screenplay. I want to attach myself to the project as director but the producer is reluctant and favors an established director. Is it worth sticking to my guns or am I shooting myself in the foot?
Bob's Reply:
Todd: This is a frequent issue with writer-directors, especially first time ones. Do you have a sample reel such as a short film or even commercials or music videos which you can show the producer to demonstrate how you can direct? A good sample reel can demonstrate how a director works with cast, tells a story and offers a certain cinematic "style" given the budgetary and other restraints of a short project.
Does your script have a low enough budget for the director to offer you the opportunity to direct? You should bear in mind that if a producer agrees that you can direct the film, the producer may want to have deal terms in the screenplay agreement which are more favorable to the producer such as a lower purchase price and the producer’s right to have you write many rewrites at no or nominal fees in exchange for the producer offering you the chance to direct. You also should discuss with the producer who could work on the project as a director of photography, line producer, first assistant director so that you have a solid support structure.
At the end of the day, the question is whether your directing the project is a dealbreaker for the producer. If so, then you have to be prepared to walk away from the producer’s proposal to produce the project--which possibly may be either your best or only chance to get the script produced. You have to do some careful and difficult thinking about this issue. Hopefully this is not your only script and you can hold out to get the chance to direct your next or a subsequent project which is often the case with many screenwriters venturing into directing.
July 2009
Question by Melissa Larch, CT:
I have just finished a script and have approached a few agencies and producers and some want me to sign a release form before reading my screenplay. How common is this and what rights am I signing away?
Bob's Reply:
Melissa: Given the litigious nature of our society, producers and many agents are insisting that a writer who submits his or her work sign a submission release ("Submission Release") as a means to prevent a writer from bringing a claim or ultimately a legal action for copyright infringement, breach of a confidential relationship or breach of an implied contract just to name a few possible causes of action against the producer or the agency.
The Submission Release generally states that a writer waives any claims including, but not limited to, the existence of is a confidential relationship between the parties or any other agreement except that the agent or the producer has agreed to review a writer’s work in consideration of the writer signing the Submission Release.
Most of these Submission Releases range from somewhat fair to terribly one-sided. Examples of the former usually state that if the agent or producer is working on a similar project that has been independently developed or received and reviewed, the writer cannot bring a claim against the agent or producer. The parties would have to explore the circumstances of what constituted an independently submitted or developed project.
If the Submission Release states that the parties are willing to resolve a dispute by arbitration which is private, generally quicker and less costly than litigation (in most cases) that is a helpful sign for the writer since most agents and producers realize that most writers cannot afford litigation costs.
Some Submission Releases state that if a writer should prevail in a dispute with an agent or producer, the writer’s remedy is limited to either Writers Guild of America (WGA) minimum scale or a certain fixed amount such as $25,000. The agents and producers are attempting to limit their liability; however, if this type of provision does not appear in a Submission Release, then that is obviously beneficial for a writer.
The Submission Release could state that a writer’s remedy is limited to monetary recovery and that the writer would not be able to impede or prevent the production, marketing, distribution or other exploitation of a project which is the subject of the dispute. Without this provision, a producer or a studio would have possibly millions in production and marketing money at risk. If this provision appears in the Submission Release, there is almost no chance of removing it for the aforementioned reasons.
Most Submission Releases acknowledge that a writer should retain a copy of the Submission Release and the submitted material.
Obviously the safest way to protect a writer’s work is for the work not to be shown to anyone; however, that is counter-productive and somewhat ridiculous. Therefore, a writer should have an attorney review the Submission Release so the writer understands what he or she is signing and to determine if there is some sense of fairness to the Submission Release or is it a "take it or leave it," one-sided agreement so that the writer can make an informed decision whether to sign the Submission Release.
Question by Rick Hayes, CA:
My spec script was purchased by a producer and I did a couple of paid rewrites for him before he took the project to another writer. How much of the script does the new writer have to change in order to receive a screenplay credit? And how much would the new writer have to change to be listed before my name? Is it possible that my name could be removed altogether and if so, would I be entitled to a story by credit?
Bob's Reply:
Rick: Without my reading your agreement with the producer, it is difficult to assess your particular situation. That is why any writing services and/or option and purchase agreement should be reviewed by an entertainment attorney with experience in the motion picture industry. The answers to most of your questions should be in the credits provision of your agreement with the producer.
According to the agreement, do you have a guaranteed writer’s credit of some sort such as a "screenplay by" or "story by" credit if another writer substantially rewrites your script. Have you and the producer agreed to utilize the credit rules of the Writers Guild of America (WGA) even though the producer may not be a WGA signatory and you may not be a WGA member. If the producer were a WGA signatory and you were a WGA member, there would be automatic arbitration if there would be more than the original writer who has contributed to a script. (Even a non-WGA member writer could receive some benefit of WGA credit rules and if the producer subsequently hires a WGA member and the producer is or is compelled to become a WGA signatory since the WGA arbitrators review the contributions of all of the contributors to a script regardless of whether the contributors are WGA members.)
I once represented a producer who had two writers who did not want to share any writing credit. Since the producer was not a WGA signatory and neither writer was a WGA member, the WGA did not want to get involved unless the parties became affiliated with the WGA which they declined to do. Therefore, the parties agreed that there would be a private, non-WGA arbitration procedure which would use the WGA credit rules as decided by a neutral third party. (The neutral party had been a WGA member who had gone through the WGA arbitration process himself.) The neutral party would read a certain agreed upon number of drafts submitted by each writer, and the arbitrator would make a determination based on the drafts and any relevant information provided by the writers and/or the producer. However, the arbitrator wanted to be paid in advance a considerable amount for his services. The producer explained that both writers would have to share the costs of paying the arbitrator since this dispute was between the writers and not with the producer. The writers suddenly saw the wisdom and economic benefit of sharing writing credit.
The WGA credit rules are on the WGA website or can be requested from the WGA West or WGA East offices (as applicable).
Generally a new writer has to rewrite the first writer’s script substantially in order to receive writing credit since the WGA has a rebuttable presumption that somewhat favors the original writer unless the new writer changes a majority of the script.
If your agreement with the producer does not address the writing credit issue or permits the issue to be decide within the producer’s discretion, then the producer would have the latitude to determine writing credit using the producer’s judgment.
The issue of credits is more than issue of ego or vanity; a writer’s credits establishes a writer’s experience and what a writer has been paid in the past (i.e., "quote") which could serve as the basis for future negotiations with producers or studios.
June 2009
Question by Evan Jackson, AZ:
I've written a spec script based on the central character of a popular Hollywood movie. Is it okay for me to send this script out to producers and agents as a sample or do I need to obtain some kind of release from the studio who made the original film that the character appeared in? Is it worth me contacting the studio anyway in the hope that they like the script?
Bob's Reply:
Evan: Although your use of a character from an existing motion picture feature is for demonstration purposes, it does constitute copyright infringement since one of the rights which a copyright holder has is the exclusive right to create derivative works based on an existing work. Although there is quite a bit of "fan fiction" in which fans write stories using characters from television shows such as "Law & Order" and "Star Trek", the studios and production companies which hold the rights to these programs generally turn a "blind eye" on this practice since these amateur writers are writing as a hobby with no interest in using these protected works and characters found in their stories in the commercial marketplace. Your use of such a character is an attempt to get a foothold into the commercial marketplace.
You could seek a release from the copyright owner of the work which includes the character but most copyright holders want to keep a tight rein on how protected works are being used by others in a commercial context so that the value of their copyrighted work is not possibly diluted from any overuse not controlled by them.
Your question reminds me of a time when a writer sent to me a screenplay which was an adaptation of a book featuring James Bond which was commissioned by the Ian Fleming estate. Although the adaptation was very good, I informed the writer that the work had a potential buying group of one, the producers of the Bond franchise. More importantly, the adaptation did not work as the most effective writing sample for the writer since it did not indicate the writer’s ability to create interesting and compelling characters and stories of the writer’s own invention.
Often television writers usually write spec scripts that are writing samples using characters and situations from existing television shows. However, the writer is trying to demonstrate how well the writer can write a script using a television producer party’s characters and situations. Usually the writer writes a spec script based on an existing show but the writer does not submit it to the producers of that particular show itself since that show’s producers have read many sample scripts which utilize situations that have been included in prior episodes or have been dismissed in the past by the show’s producers for a variety of reasons ranging such as character consistency, plotline overuse and production expense.
In short, for motion pictures, write the best original screenplay that you can.
Question by Kate Lee, OH:
I'm a first-time screenwriter and have received some positive feedback from a production company about my script. They want to option it for free for 12 months and also want me to do a free rewrite in exchange for more percentage points. Does this sound like a fair deal? What percentage point figure does a new writer typically receive and what other bargaining power do I have at this stage in my career? And if a movie made from my script is fairly successful, how can I ensure I receive the points I am legally entitled to? I ask this because I’ve heard some disheartening stories from other writers who feel they never received the money they were legally entitled to even though their movie had a theatrical release and subsequently went to DVD. Is my agent/attorney allowed to audit the production company’s books? How easy is it for a producer/studio to "massage" the figures in their favor?
Bob's Reply:
Kate: Your question is certainly multi-pronged.
Your first question addresses the typical issue of when a writer should accept a no- to low-money option payment For the purposes of this discussion, I will make the assumption that the producer is not a Writers Guild of America (WGA) signatory and you are not a WGA member or a what the WGA would deem a "professional writer" (i.e., you have written a screenplay or play that has been produced or a novel which has been published) since the WGA rules address several parts of your question. Typically a writer should receive some nominal option payment to show that the producer has some proverbial "skin in the game;" however, if a producer is independent and does not have a development fund from a studio or other company (and those arrangements have become increasingly fewer these days) and the producer has some sort of track record or contacts as well as a sincere "passion" for the screenplay, perhaps you could make the initial term nine months instead of a year or if the producer wishes to renew the option, then the producer would pay an option payment for the option extension. Or you could enter into a shopping agreement which has a shorter term. (Please read my article on "shopping agreements" for a discussion concerning them which can be found on this website.)
Concerning a free rewrite, there is a balance which must be achieved between a writer rendering a free rewrite and a polish or further writing services and not being compensated for numerous rewrites and polishes. That balance should be addressed in your agreement with a producer. For example, a writer will provide one rewrite and a polish but any additional writing services by the writer will be negotiated in good faith by the parties. A writer should bear in mind that once a writer begins to request compensation or additional compensation for writing services, the producer may decide to engage another writer (who will work no or less money or has a track record to justify the producer paying more money for the writing services) especially if the agreement between the parties permits or does not prohibit the producer from doing so. It is a dilemma which many writers have to face.
If the project proceeds to production, you would be paid the purchase price for the rights to your screenplay (which would be a fixed figure or a percentage of the project’s budget). In addition, there may be a bonus which you could receive for your writing services if the project goes to production, especially if it is produced by a studio, network or so-called "mini-major."
A writer also can receive a profit participation anywhere from two to five percent of the producer’s share of the net profits. Sometimes the profit participation is called "net proceeds," "adjusted gross proceeds," or "modified gross proceeds." The label of the profit participation is not as important as how such profit participation is defined, calculated and paid to a writer as a profit participant. The best that most profit participants such as writers can achieve is to tie how the writer’s profit participation is defined, calculated and paid to that of any other person’s or entity’s profit participant’s definition and manner of payment including that of the producer. This provision helps to keep the playing field level concerning profit participation.
A writer’s agreement should state that there shall be accounting statements which shall be received by the writer which are issued on the same basis as any other profit participant in terms of form and frequency (e.g., quarterly for the first two years after the initial commercial exploitation of the film, twice a year for another two years and annually thereafter). A writer’s agreement should include a right to examine or formally audit the producer’s books, records and other documents pertaining to how a motion picture feature’s revenues are calculated and received by a producer. This examination or audit right is usually exercisable by a potential profit participant once per year. In some cases, if the right is not exercised within a certain period of time (usually twenty four months or more from when the potential profit participant receives a statement), the potential profit participant is barred from examining the producer’s books and records pertaining to that statement. Please bear in mind that such examinations and audits can cost from five thousand to ten thousand to more. The potential profit participant has to assume the cost of the examination or audit; however, a provision could be included in an agreement which states that if one is underpaid by a certain percentage (e.g., 5%-10%), then the producer is required to pay the underpayment immediately and to assume the cost of the examination or inspection.
Finally, many distributors and producers do not need to falsify or "cook" the books since the profit definitions are so inclusive that every expense (including interest) is taken before there would be any profits. In addition, there are certain parties such as "star" directors, producers and performers who may receive their contingent compensation earlier in the economic "food chain" than the net profit participants, thereby eliminating or lessening the possibility of net profit participants receiving any monies. That is why such films as "Fatal Attraction" and "Coming To America" can generate large revenues but minimal to no profits and even losses.
May 2009
Question by Joe Biancardi, AL:
I am writing a script that has a section that includes a real personality. This person has seminars that teach this belief and is used throughout the story. He has read the story and loved it. He has said he would sign a release but my writing instructor said forget it. He could always come back on me and cause problems later on, if the script is made into a successful movie. What do I do?
Bob's Reply:
Joe: If you featuring a living person in your project, you should get a release from that person in which the release states that the person is waiving any and all claims that he or she may have concerning the project against you and your successors, licensees or assigns. This is important since you do not want that person pursuing a claim against a project's distributor or licensee which is usually the so-called "deep pocket." There should be a reference in the release that the person is not entitled to compensation for signing the release. If that is not the case, either reconsider featuring this person, significantly fictionalize this person to the point that he or she is not discernable or negotiate some form of fee or compensation for his or her waiver, cooperation and perhaps exclusivity to some extent so that another project does not feature him or her within a certain period of time. This question dovetails into the issue of life story rights which I should be addressing sometime in the future.
Question by Jennifer Gray, FL:
If you work with a writing partner, is it advisable to have a contract between you at the very start? Is this a common practice and if so, how well would such a legal document stand up in court or arbitration?
Bob's Reply:
Jennifer: In any collaboration, it is a sound notion for the parties to understand the terms of that relationship especially in a writing since memories tend to fade with the passage of time. It is like a pre-nuptual agreement which is usually written early in a relationship especially since the stakes are low and third party interest and money offers are somewhat down the road. The agreement should address such issues as what the parties will be contributing to the relationship, how are monies to be allocated between them, how are decisions to be made, what if one party leaves the collaboration or dies or becomes incapacitated. If these issues are addressed and set down in a writing signed by the parties, the parties should hope that the agreement will only be referred to by the parties if a dispute should arise between the parties so that the parties know how the dispute should be resolved (through good faith discussion, mediation, arbitration, litigation). Assuming the collaboration agreement sets forth the terms and various scenarios, it should be enforceable in a court or in an arbitration proceeding similar to any other binding contract. This is one of the reasons why an attorney should be engaged to write the agreement since the cost of having the agreement prepared may be much less of an overall cost than the ill-will generated between the parties when a dispute gets out of hand.
Question by Mark Adison, NJ:
I do not currently have an agent or manager and am considering having an entertainment attorney submit my script to a producer. What are the differences between script submission from agents/managers and attorneys from the perspective of the recipient? Is it an equally professional/acceptable method? Would I still need to send a query letter? What are the fees involved?
Bob's Reply:
Mark: Most production companies, networks and studios prefer to deal with writers through a representative for several reasons. One, if a writer needs a representative to submit a script, then there is this filtering process in which only represented works are submitted for consideration and that representative is someone who believes that the work is worthy of such consideration. Although, these companies do not necessarily view these representatives as having strong story analysis skills but as a winnowing mechanism for them. Some representatives may submit almost everything that comes across a desk; however, development executives soon realize this and place that representative's submissions towards the bottom of the pile. In addition, these companies prefer to have some form of buffer between the writer and themselves since development or creative executives do not want to be forced into a position to tell a writer why a work is wrong for the company or wrong in general in that executive's opinion and analysis. Furthermore, if a deal is to be made with a writer, the representative as buffer also applies so that an executive does not have to negotiate directly with the writer who has a personal and professional involvement with the work.
Some companies prefer an agent or a manager to submit a writer's work to that of an entertainment attorney since the executives have a relationship with the agent or manager when it comes to submissions. Agents and managers often have worked with the writer when he or she was writing the script and executives can discuss the work more extensively with an agent or a manager than with an attorney who is generally submitting the work so that a writer does not need to sign a submission release. Many companies accept submissions from entertainment attorneys although some companies tend to accept submissions only from entertainment attorneys with whom they have a relationship (more of the filtering process). The agents and managers work often on commission (e.g., 10% and 15%-20% respectively although there are no absolute rules) and attorneys can work on a smaller commission (e.g., 5% to 10%); however, since most attorneys' key purpose is to provide legal counsel and not submit a client's wok, the attorney may charge a writer for the cost of writing and sending a letter (which often should be accompanied with your own query letter to the development or creative executive). Some attorneys will submit a work if the work is from an existing client so that the submission is a bit of a "value added" incidental service to negotiating a writer's agreement if a company does express interest in the writer's work.
April 2009
Question by Alison R. Lock, OH:
I am writing a spec script with a main character that is a lecturer in a well-known university. Is it okay to use an actual name of a university or should I make up a fictitious name?
Bob's Reply:
Alison: If you want to play it safe, use a fictitious university name. (You may note the numerous references to "Hudson University" thoughout the years in the different incarnations of the "Law & Order" franchise.) If you need for some storytelling purpose to use the name of an actual university as part of the backdrop of your story, then make sure you depict the university in a neutral to positive manner and not in a derogatory manner.
Question by Greg Jemino, NY:
An indie producer likes my script and wants me to sign a six month free option. Should I sign a screenplay purchase agreement at the same time? What kind of bargaining power do I have as an unproduced writer?
Bob's Reply:
Greg: A writer often enters into the conventional option and purchase agreement in which a producer has a period of time (such as a year) to develop, submit and fund a project with the producer's right to renew the option for a certain period of time (such as another year) with no or minimal payment. Instead, a writer can enter into a shopping agreement with a producer who often has a list of possible funding sources. Under the terms of the shopping agreement, the writer is giving a producer the exclusive right for a shorter period of time (such as three to six months) to fund or set up the project for production. If the shopping period ends and the producer is still negotiating with a party, the producer can have a short (e.g., 30 day) grace period for the deal to close or fall through.
If the producer can set up the project, then the producer and the writer negotiate their own respective terms with a funding source. If one or both of the parties makes unreasonable demands, the deal can fall through so the producer and the writer should agree to consult and negotiate their own deals in good faith. (Producers tend to prefer options since the purchase price is pre-negotiated as a flat fee from the budget or a percentage of the budget with a minimum and a maximum, but the producers often cannot afford to make more than nominal payments as option fees.)
One additional but important point: outside of the shopping agreement, a conventional option and purchase agreement requires the means of establishing the purchase price (which can be in the budget, deferred on occasion and/or a profit participation) as I had mentioned previously. Otherwise, the document is just "an agreement to agree" which defeats the purpose of an option and purchase agreement: to provide a degree of certainty for a writer and a producer when a producer approaches potential funders for a project.
