6 Legal Agreements Every Screenwriter Must Know
Whenever
I speak to aspiring screenwriters, I always go out of my way to emphasize the
importance of being legally prepared. Not surprisingly, most screenwriters come
to their interest in writing from a place of artistic passion, and so things
like legal matters are not as high on their list of priorities.
As a
result, many newer screenwriters start their careers with no legal agreements
of any kind. Sometimes the screenwriters involved are friends with the people
they work with and they assume no agreements are needed. Or they assume that
they’ll need agreements if they ever sell their work, but not today. To be
fair, I’ve seen a few professional screenwriters make this same mistake, and it
always blows my mind.
There
are three main reasons you should never make a similar mistake:
1.
Screenwriting is a business, and businesses run on
contractual agreements.
2.
Such agreements help define the business
relationship between screenwriters and the people they work with.
3.
If screenwriters don’t define their business
relationships, there may be little or difficult recourse when problems arise.
And problems often arise.
Most
screenwriters will encounter several kinds of legal agreements in their career,
but here are my top six. Of course I know that reading this article is not the
same thing as going to law school or hiring an entertainment attorney, but if
you work in showbiz, you’re likely to encounter most of these. Do you really want
it to be a surprise? When the time comes, I want readers to take active steps
to protect their interests.
Note:
I am not a lawyer, and the following does not constitute legal advice! If and
when you find yourself in a position to negotiate any of the following
contracts, please speak to an entertainment attorney.
That
said, here are my top six screenwriting legal agreements:
1.
Option/Purchase Agreements
An
option/purchase agreement is most often used by two parties to sell/acquire the
motion picture and television rights to existing screenplays. But this kind of
agreement is also used to acquire the motion picture and television rights to
things like comic books, novels, theatrical works (plays/musicals), or even
film remake rights. I mention this because it’s becoming more and more common
for screenwriters to take the initiative and acquire these kinds of
pre-existing intellectual properties as the basis of the screenplays they
write. If you’ve been to the movies or watched television in the past 10-15 years,
the reason is obvious. I do a deep dive into this topic in my book BASED ON, for those who are interested.
But if
you’re a screenwriter with an original screenplay (or pilot), and someone wants
to produce your work, an option/purchase agreement is probably what you will
sign. The general idea of this kind of agreement is that, for an initial lower
cost, it allows the acquirer to “control” the rights to your script exclusively for some agreed period of time at a
defined cost.
Because
such a low percentage of scripts are produced, the advantage for the acquirer
is that the option part of the agreement allows them to temporarily control the
rights for less money (the “option” price) than it would cost to buy those
rights (the “purchase” price). If the acquirer finds the funding/means to get
the script made, the purchase half of the agreement lays out the terms for the
purchase, and everybody goes home happy.
The
advantage to the screenwriter (in addition to a possible option payment), is that someone is out there trying to get
their script made, and if that someone fails, the screenwriter gets their
rights back and might be able to sell their script to someone else at a later
date. Cool.
Of
course, there will be many other provisions specified in an option/purchase
agreement, including rights related to sequels and remakes, screen credit,
bonus payments, and much more.
2.
Writer Agreements
A
writer agreement is an employment agreement a screenwriter will sign if they
are hired to write or rewrite something. From a legal perspective, it is
considered a labor agreement. This kind of agreement will specify things such
as what services the writer will be performing, the writer’s payment, the
payment schedule, screen credit, as well as the timeline for when the services
will be performed.
Sometimes
a writer agreement will be part of an option/purchase agreement if additional
paid rewriting services will be required. A writer agreement will also include
a “work made for hire” provision. I only mention this because it’s a
fundamental provision that allows the entity hiring you to own the thing they
are paying you to write. And you can drop the phrase at cocktail parties to
impress your friends.
One
note: If you are a member of the WGA, some of the terms in a writer agreement
(and to a lesser degree, option/purchase agreements) may be additionally
regulated under the terms of the agreement the WGA has with “signatory”
companies (such as studios, networks, cable companies, production companies,
and actual producers). For example, minimum payment and screen credit are
covered by the WGA’s MBA — minimum basic agreement.
3.
Collaboration Agreements
A
collaboration agreement is used when two or more parties decide to work
together to achieve a common goal. For example, to co-write a script. It is a
relatively simple agreement that specifies the agreed goals, assorted
responsibilities, ownership, and other basic aspects of the relationship
between the collaborating parties. If you plan to co-write a script, a
collaboration agreement is the first agreement you should sign.
The Writers Guild of America has a good (if slightly basic)
sample agreement on their website.
A
collaboration agreement is an often-overlooked agreement by screenwriters,
which is a shame because it is perhaps the only agreement mentioned in this
article a screenwriter might use without requiring the paid services of an
entertainment attorney. If you plan to co-write, always sign a collaboration
agreement. For many readers, it may be the first agreement you ever sign.
Welcome to the big leagues!
4.
Representation Agreements
As the
name implies, this is an agreement between an agent or manager and their
client. The agreement allows the representative to act on behalf of the client
in very specific ways and to be compensated accordingly.
If the
agreement is with an agent, then the terms of the agreement will also be
subject to state laws and union agreements intended to regulate agents and
their relationships with their clients.
This
is not the case with managers. Managers are mostly unregulated and this allows
them to do things like produce their client’s work.
By the
way, a representation agreement with a lawyer is usually called an “engagement
letter.” Essentially the same thing, but not as romantic as it sounds.
5.
Submission Release Forms
Screenwriters
with no representation (and even some who are represented) are occasionally
asked to sign a submission release before they will be allowed to submit their
screenplays for consideration by agents, managers, producers, production
companies, and events like workshops or festivals. If the writer signs it, they
lose their right to sue if they believe their work was subsequently ripped off
by the other party to the agreement — or at least that’s the idea.
Let me
summarize my position on submission release forms in general:
1.
Writers who worry about their scripts getting
ripped off sometimes “over-value” their work. The vast, vast, vast majority of
original screenplays are in no danger of being stolen. (Let the angry posts
begin?)
2.
Consider the reputation of the organization or
people who are asking you to sign. Do some research. Some are more slippery or
fringe than others.
3.
If the only alternative
is your script sitting on a shelf or on a hard drive forever, what do you have
to lose?
I tend
to side with those who say never sign, but I also understand how hard it is for
new writers to get their work into the Hollywood system.
6.
Shopping Agreements
In the
last twenty years, the business of selling scripts has become much tougher.
This has led to the widespread use of a so-called “shopping agreement.”
A
shopping agreement is a simpler alternative to the more-elaborate
option/purchase agreement. Whereas an option/purchase agreement might run 8-12
pages, a shopping agreement might only be a page or two. And this brevity can
also streamline the time and cost to negotiate such an agreement.
Typically
initiated by a producer, the advantage of a shopping agreement is that the
producer can, at no cost, shop the writer’s screenplay with the assurance that
they’ll be “attached” to the project should it get “set up” with a financier
under a more formal agreement.
The
advantage for the screenwriter is that the producer is out there trying to get
the writer’s script made, but there’s been no transfer of rights as there would
be with an option/purchase agreement. This can give the screenwriter a bit more
negotiating leverage should the producer find a proper buyer for the script.
Still, there are many details to consider.
You
should never sign any contract without having an entertainment lawyer represent
your interests. And make sure you use an entertainment lawyer and not Uncle Ed,
who does elder law.
Start
there and make good business and legal practices part of a long career. If you
have any comments or suggestion, I would love to hear them.
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