Got an offer to option your screenplay? Here are eleven terms you should know when talking to your attorney.
[NOTE this article has been cited on BlueCat, ScriptTips, SimplyScripts, and others.]
[See PART I – 10 things to think about when optioning your screenplay]
Okay, so you’ve gotten an option offer, you’ve thought about the 10 things, and you still want to do it. Now it’s time to talk to your attorney, and make some decisions about the negotiation points. Your attorney is going to toss some notes back to you for consideration, and chances are these things are going to be included. (There’ll be lots more than this… from simple typos to wholesale rewrites. But these are the top contenders for “things I think you should know”.)
Ask your attorney to spend some time with you to explain what they mean in the context of your deal… but here’s my take, based on my experience.
DISCLAIMER: I shouldn’t have to say this, but: I Am Not A Lawyer, I am not offering legal advice, and none of the numbers used as examples here should be considered recommendations or as examples of my personal previous contracts (which are none of your beeswax 😉 ). They are provided as hypothetical examples only. Talk to your own attorney about your particular deal.
PART TWO
Equity
This is a freebie. Either that, or this is really a list of 12 more things to think about. But I use the term “Equity Position” or “Equity Participant” frequently, and I want to make sure you know what that means before we really get started.
Equity (as defined by Wikipedia) is “the value of an ownership interest in property, including shareholders’ equity in a business”.
It means you’ve got an ownership stake in the property, and participate in its upside. When the property increases in value, your piece of it increases in value. You’re an investor.
And of course, should it be worth nothing (and many an indie film is worth just that), so then is your stake.
Your share of ownership in the property is generally defined as a percentage, or points, which brings us to:
1 – Percentage, Points and Net
This is a long one, so let’s get it out of the way.
You may be offered a percentage of “Net Profits”. Most people will tell you that this is worthless, and it may very well be (I’ve had a percentage of Net on all my options, and most of the features I’ve worked on in any other capacity, and so far I haven’t seen a dollar) for two reasons:
- (1) Most films — especially small low-no budget indie films, never get finished. Of those that get finished, most never get distribution. Of those that get any kind of distribution, most genuinely don’t make a profit. So your percentage becomes a percentage of “zero”.
- (2) Of those films that do make a profit, often some very creative bookkeeping takes place to make sure that “net profit” is never achieved (on paper), so again your percentage becomes a percentage of “zero”. (See below)
Some oversimplified round numbers: “Net” is the amount of profit that is left after “Cost” is recouped by the producer. If it costs 50K to make the film, and the film them “Grosses” 100K (in distribution deals, say) that’s a “Net” of 50K. Let’s say you negotiated 5 percent of Net. You get $2500. Simple, right?
Not so fast. What constitutes a “Cost”? The producer may claim other costs besides pre, production and post. There may be M&A (Marketing and Advertising) costs, film fest entries (maybe including her travel and lodging to attend said fests), and so on. You might even see “Producer’s Fees” (a professional fee the producer has set aside for herself to be paid as a “cost” before arriving at “Net”).
So make sure your attorney gets “Net” defined in your contract. You may not completely love the definition you get, but at least it’s non-negotiable. Should you NOT have it defined, it may became very nebulous indeed if the film catches lightning in a bottle and becomes “Paranormal Activity”.
So you arrive at a definition of “Net”, and you’re getting some piece of “Net”. What piece? Sometimes you’ll hear the term “Points” – as in, “we’ll give you 5 Points in the film”. It’s easy to think this means “Percent” (and it might) but it’s not uncommon for the overall Net profit to be split in two — half for the producer, half to be shared among investors and/or other equity participants (like you). That second half is divided into 100 “Points” (sometimes more). So your “5 Points” may really only be 5 Percent of 50 Percent, or 2.5 Percent, of Net.
Further, those Points may be assigned a dollar value… so as funding is being pursued, investors are sold Points at a fixed cost — say $5,000 per Point. Invest $20K, you get 4 Points. If that’s the case, a dollar value is being placed on your contribution (if each Point is worth $5,000 and you’re getting three Points, that’s valuing your contribution at $15,000). Make sure the Point value matches the agreed value of your deferred pay – or at least, that you’re comfortable with the valuation.
Lastly, consider the order in which equity participants are paid out. Some agreements may have the cash investors paid back first, until they recoup some percentage of their investment (anywhere from <100% to 110% or more) before “Net” is arrived at. In other words, all the “hard costs” of the film get recouped, then as profits come in it all goes to cash investors until said threshold is hit, THEN other equity participants start getting their cut. Perhaps the “point structure” should mandate you get paid as a CASH investor… with the “first paid”.
Bottom line? You’re not likely to affect how “Net” is defined. But getting it defined in your contract, and then defining WHEN you get paid, sets all expectations, and gives you the power to protect your back end participation should the film ever turn a profit.
2 – Audit and Accounting Rights
Pretty much what it sounds like… particularly important when you’re an equity participant. You want to be able to (reasonably) request access to Accounting information for the purpose of an Audit. You may never need to exercise it (I hope you don’t) but should the “Net” seem mysteriously elusive, you’ll want these rights in writing.
3 – Box Office Bonus
A Box Office Bonus is just that… a bonus paid to you for good box office performance. Hey, if the movie does well, it’ll be in part because of your great script, right? So how does that work?
If the box office gross surpasses the budget of the film (and you’ll want to define what constitutes the “budget” too) you may receive a bonus. This can be a tiered structure as the box office reaches ever higher multiples of the budget. For example:
- $10, 000 when box exceeds 2.5 x budget
- another $10K when box exceeds 3 x budget
- another $10K when box exceeds 3.5 x budget
- a balloon $30K when box exceeds 4 x budget
4 – Set Up Bonus
Another opportunity for a bonus? Yup. You can negotiate a “Set Up” bonus, which pays you a happy little chunk of unexpected change when the project is “Set Up” with either a production or distribution entity.
How much? Think in the neighborhood of 3-5% of your purchase price.
5 – Writing Rights and Fees
Get paid for more writing? Sign me up! See, what the producer is purchasing is rights to your script in whatever version/state it’s in when they optioned it. Once it’s optioned, you shouldn’t still be working on it, unless you’re getting paid for it.
Okay, that’s not entirely true. You want to be a team player, and if this is a low budget project, money might be tight. You may opt to forego fees for rewrites if it helps move the project toward production… imagine Angelina Jolie said she’d consider being attached, if her part were meatier. Are you gonna screw the pooch by demanding another 5K the producer can’t afford?
I didn’t think so.
But you do want to be the writer writing for Angelina, right?
So get first right of refusal on rewrites, polishes and sequels.
If you want to write for free, consider putting a limit on the number of unpaid revisions. Be generous if you like, but protect yourself.
Then, when it’s time for paid rewrites or polishes, you should still be first in line, and you should have a fee defined in the contract.
How much? Entirely dependent on the budget and purchase price. Work it out with your attorney (have you heard me say that too much already?).
6 – Passive Payments
Like to get paid for not working? It could happen.
Imagine the option is exercised, and your script is bought. It goes to production, gets distribution, and sees enough success to warrant a sequel. If you’ve negotiated well, they have to give you first right of refusal to write that project.
But what if you don’t write the sequel? Maybe the notoriety of the original project has got you too busy with new assignments… or maybe they’ve done something terrible to your original concept and you don’t want to be associated with the sequel ;). Whatever the reason, if you’ve negotiated a Passive Payments clause into the sale of the original script, you’ll get paid for the sequel even if you pass on writing it.
How much? You might negotiate your contract to stipulate the fee for writing a sequel as negotiable, with a minimum at least equal to the purchase price of the original. Then, you can negotiate a Passive Payment of 30-50% of the fee you got for the original should you choose not to write the sequel. Make sense?
- Purchase price: $50K
- Write the sequel: Minimum $50K
- Passive Payment (for not writing the sequel): $25K
Remember that any or all three of the above might include some back end participation as well.
Consider also negotiating what credits you might get on a sequel, should you choose not to write it.
7 – Ancillary Rights: What rights are you selling?
Bear in mind that the producer is going to ask for ALL rights… that’s what “all right, title, and interest wordwide and in perpetuity in and to the Property [your script]” means. That’s the right to make it, sell it, exploit and market it in any and all media “now known or hereafter devised”.
That’ll probably include “Ancillary Rights”… merchandising, commercial tie-ups, soundtrack. Happy Meals, action figures, posters and jewelry and Hot Topic paraphernalia.
Even the novelization or serialization of the story in a periodical.
Serious, right?
But there may be some rights you can hang on to. Work it out with the producer and your attorney, but I’ve had luck retaining:
- Publication Rights (publish and distribute printed, audio and electronic versions of the Property in book form and magazines).
- Stage Rights (perform the Property or an adaptation on the spoken stage provided no broadcast, telecast, recording, photography, etc is made).
- Radio Rights (broadcast the Property by sound on radio).
- Author Written Sequel (a literary property using one or more characters, participating in different events, in a plot substantially different).
The specifics of these might get complicated, and maybe they’re not of interest to you.
Consider then also ensuring you get get some equity position in all the subsequent merchandising and other exploitation of your script. That might be covered adequately in your back end percentage of producer’s net, but check in with your attorney.
8 – Reversion Rights
What if the producer exercises her option, buys your screenplay, then never makes it? Sure you got paid, but wouldn’t you like to see the film produced? And now it’s sitting on somebody’s shelf collecting dust, never to see the light of day. What if you’d like to get it back and maybe find it a home where it’ll finally get shot?
That’s what Reversion Rights are. Some defined number of years after a purchase (3? 5?) the rights to the script can revert back to you.
But wait, you say… the producer paid for the script. Don’t you have to buy it back?
Nope… you can negotiate a “lien” on the script, which means that they’re paid back as a part of the budget that eventually gets raised for a future production, or out of its profits (as an equity participant), should you succeed in placing the script with another producer. Again, let your attorney work out the details. But consider asking for Reversion Rights if you can.
9 – Arbitration Clause
A basic part of any contract, this clause simply states that should the contract require arbitration, you and the producer agree to abide by arbitration rules of a given state. Usually the state in which the production entity is incorporated.
10 – Get yourself added to E&O Insurance
E & O (Errors and Omissions) Insurance is standard practice for all productions (or should be). It protects the production company from liability should they cause financial harm to another party by way of an error or an omission. So, you want to be protected as a member of the production from liability.
Imagine they screw up and use Toyotas in that big crash scene you wrote, without permission from Toyota, thus inferring that Toyota’s brakes and accelerators kill babies. Toyota takes them to the cleaners. You want that mess to roll downhill to your unprotected hiney? I don’t… so having your name added to the production’s E&O is smart protection.
11 – WGA and Credits Protection
I actually talked a lot about this in Part I but thought it bore repeating here. If you’re not WGA, how can you protect yourself from losing credits or rights to WGA writers who might come on board the project later for rewrites, polishes, etc?
Have it stipulated in the contract that, should the project fall under WGA jurisdiction, you should be deemed a “Professional Writer” and a “Participant Writer” as defined under WGA to determine writing and separated rights.
And while we’re talking credits…
- Story By: You didn’t write the script, but created the source material (article, book, treatment, etc).
- Written By: You wrote the script, and everything is original to you.
- Screenplay By: You wrote the script, based on source material not original to you (article, book, treatment, etc).
And of course all of these can be shared among numerous individuals.
In the end…
Seems like a lot of stuff, right? It is. And this is just the tip of the iceberg. Your attorney might recommend everything from how many copies of the DVD you get, to guaranteeing invites to any festivals the movie plays at, to negotiating first-class flights to the premiere. It’s up to you what to push for and what to let go, but I’ll leave you with this thought (and I’ve said it before):
Be a partner. Don’t cripple the deal, or the production (especially small productions), with unnecessary fees that might either paint you as a prima donna, or worse, keep good money from hitting the screen. When the time comes that you’re negotiating million dollar development deals, then you can play hardball if you must (I know I will. I love me some First Class).
I personally have tried to focus on a fair price, first rights of refusal for paid rewrites and sequels, and protecting my credits.
I hope you have every opportunity to huddle up with your attorney, and negotiate a fair contract that forges a real partnership with a great producer that turns into many more projects.
Till then, good luck. Check in and let us know about your success stories (or horror stories). And if you’ve got anything to add to the above (corrections welcome) hit me up in the comments section.
Good writing.
Thank you for posting such a thorough account of what optioning involves.
I especially like your advice about being a partner and not crippling the deal.
This is informative and reasonable.
Hey! Thanks for coming by again! Happy you liked it…
What a fantastic article, Chip. Thanks for the wisdom.
I think this may be the most comprehensive resource on options that I’ve read. And I’ve read a fair few.
Jeff
Thanks, Jeff glad you liked it. That’s high praise! Feel free to pass it around! 😉
Thanks. You’ve done a great service to newbies and pros alike. Wonderfully concise and useful. I’ve kept a copy to re-read — many times.
Getting added to the E & O insurance is a very useful tip I haven’t seen on these lists before.
Glad I found this. I’m bookmarking it. Thanks 🙂
Happy to see people still finding and using the posts. Glad it’s useful. Remember tho… Online research is good, but having an entertainment lawyer is better! Good writing…
Many thanks for this. I am so pleased I found your articles. I have printed them off and I will study each line until I am word perfect ( well, nearly). I have just finished an adaptation of one of my books and my publisher (Random House) is so interested their agent is looking at it. I have three production co’s interested too, but I’ve been down this road before so I’m not holding my breath.
This is probably the most important article I have read.
Thank you very much.
Best,
Chris.
Thank you for the insight!
Again, wonderful information and insights. I’d never heard of Reversion Rights, Passive Rights, and the E&O Insurance tips before. They really opened my eyes.
I’m curious why you aren’t a WGA member? Are the fees too steep or is there another reason? (there could be a whole new article about this topic: Pro’s and Con’s of WGA membership)
Hi, Nate —
I’m not WGA for a few reasons. Firstly, None of the projects I’ve worked on have been signatory… so I haven’t gathered the ‘points’ necessary for membership. But I also think there’s more flexibility for a writer in the early stages of their career… not being WGA means I can work on any projects, including small productions that can’t afford to be signatory.
When I do get the points, I’ll go WGA… I think that’s the goal. But right now I’m not in too much of a hurry.
Hi Chip I read the WGA qualifications for membership but not quite clear on something. How does the WGA define a “signatory” company?
A signatory is “a company that has signed the Guild’s collective bargaining agreement” (http://www.wga.org/content/default.aspx?id=84)
This means they agree to abide by the Guild’s rules regarding payment, rights, credits, arbitration, etc.
The agreement is here: http://www.wga.org/content/default.aspx?id=1049
Will you consider sharing the name of your attorney, being that you seem very pleased with him, and it would be good to have someone one can feel they can trust?
Thank you for all this valuable information. Now I understand what an option can encompass.
Hi new to your site, just wanted to know, can someone pitch for you?
I live in England, and if one day I have any luck with an option and it happened to be with a US company, could someone pitch for me?
Wow! I googled for option info and in less than one minute found your article. I feel more comfortable now about getting my scripts out there on my own. Contracts are FUN! You made it very clear on working one up. Now–I’m hunting for even more details on putting my own together to use as an outline. I’m hungry for knowledge right now…Great Article! Thanks for sharing.
Great Article Chip thank you very much. I’ve read a lot of articles on this subject but yours was head and shoulders above the others. There is a great deal of complexity to this process that the uninitiated would miss, and potentially suffer for.
Thanks for sharing.
-Tim
Hey thanks Chip. I can’t begin to tell you how much this has helped me. I will follow your example and help others as I gain experience because this type of selfless help will inspire many on the path to achieve their dreams. Thank you!
Invaluable information. I plan to market two projects soon and understanding some of the ‘legalese’ is not only helpful, but essential. Thanks very much 🙂
Great information… thanks for sharing it. I hope that it comes in handy for me someday. Good luck in all your endeavors. 🙂
Thanks so much for taking your precious time to write all of this in explicit detail. You indeed have acquired and/or sharpened your legal chops! I’m much better for it! Thanks again for sharing the goods!
I’m currently negotiating an option w/ a producer and just wanted to know if it is necessary for me to set up a loan out company. Or can I just remain as a civilian writer? Does it make any difference?
Thanx,
Frank
Hi, Frank.
First, for those unfamiliar with Loan Out Co’s… http://www.abspayroll.net/payroll101-loan-out-companies.html
I highly recommend talking to an entertainment attorney, but I can say that my options have all simply been between me as an individual and the prodcos.
If you’re a working professional screenwriter, and are getting paid for multiple plays a year, I might consider this.
If this is your first or second option, if you’re not yet a full time writer but are still only negotiating the occasional option every few years, I can’t imagine this being necessary.
But again, if you’re unsure, ask a lawyer.
I’ve actually read somewhere that anything over 250K, it is better to incorporate for tax purposes….
Hi Chip.
Fantastic advice here mate.
I am a producer looking for a script to option – so on the other side of the coin.. Do you have any advice for producers or any useful links. I have had a good look on the web but your blog is by far the most useful. I just wondered if in your experience you had any tips for a fairly green producer just starting out..?
Many thanks, and good luck with all your future endeavours.
SG
Hi Simon – so sorry for the delay. I’m sure you know John August’s blogs… dig around there. He’s got some articles (I’m pretty certain) on optioning books… good insights into securing rights to properties there. There may also be some info on InkTip if you poke around. Good luck!
Great advice. Just want to know what standard points are for a writer, you use 5 as an example – is that a norm? Or 2.5 or 3, as I’ve seen?
Also, if I’m getting Producer credit, and participation, do I get extra points, and how many? This is a very big buget film, with a smaller budget producer wanting to option it.
Thanks!
Five is high. Between 2 and 3 is closer to norm I think. I use 5 as an example because (a) I’ve been lucky to get that once or twice and (b) it’s easier to do sample math. 😛
Re: Extra points for producer credit — yes and no. If it’s a big budget signatory project, I’d say yes absolutely. Bear in mind there’s Producer, Exec Producer, Associate Producer, Co-Producer… all with various levels of responsibility and pay scales… that said, on a small project you may want to be more flexible. Some might say a producer credit is a nice perk for the writer all by itself. Check with your lawyer.
Hi Chip, thanks a lot for writing this article is very helpfull, I`m currently starting negotiations with a producer who wants me to turn a book that i wrote into a Script for a TV series, he actually asked me to write a trailer for him to produce, I`ve done it already and I`m thinking on how to bring up the Option issue to the table, any suggestions?
Thanks
Rick
Bring it up matter-of-factly. By that I mean don’t be apologetic, just assume it’s standard operating procedure. “I’ve got the trailer script ready for review. Let’s get together and look it over. We should probably review the option too, so we can get that out of the way. Do you want to forward me a first draft?”
If you’d gotten an option before writing the trailer (which is I assume a trailer to help pitch the feature project) you would have stipulated some payment (either now or in arrears – after production starts) for writing the trailer. Since you didn’t do that (and I assume had no standalone contract for the trailer) you wrote the trailer for free. You own it, unless and until you give him rights to it.
If he’s out pitching your project to investors and hasn’t yet optioned it from you, he has no exclusive (or legal) right to do so. You’re protecting him, and you, by pursuing an option. And it’ll make his project more attractive to potential investors. It’ll define the purchase price of the script, and gives him legal rights to the property, which is a financial detail the investors will want to know. It’s in everyone’s best interest.
Brilliant, Im not a writer but a Producer starting out, so an invaluable article.
Glad you got value here! Thanks!
Hello. This was very important information. Do you have any idea if it’s relatively the same guidelines for those writing stage plays?
Hi — glad you found it informative. I don’t have first-hand experience as a playwright, but recently finished working on a short film project (as an art director) that was produced by a writer/director who came from a theater background. His deal structure for crew to share in the backend was based on Broadway norms, and it was different in subtle ways from what I’ve seen in typical film deals. If you’re going into theater, be sure you work with an entertainment attorney with experience in theater. Good luck!
Hey Chip:
Great article. I have a television series option that I am in negotiations on right now with a production company. Is there any variances on percentages and backend that you are aware of in what I might negotiate or ask for since obvious there are a number of episodes per season involved and not just a one-off screenplay. Thanks.
Sorry, I have no experience with episodic television. But the WGA has info on TV pay scales. Good luck!
Man I read the first of this part 2 and got a head ache thinking about it. Had to stop for a rest.
This makes me want to just produce the movie my self even more.
Great information Chip. Thank you. This has helped me build confidence moving forward.
Some years later (2013), your article is still an excellent read. Thank you for posting it.
Just had a director re-write 20% of my short horror which won a contest and is now in production. The director never mentioned my script needed a “climatic change.” He took it upon himself to make the revisions and is claiming co-writing credit. I’ll be more careful in the future to protect my authorship.
In my case, this was an inexpensive learning experience.
His desire for credit may be justified, depending on how much he’s written, if he’s added new characters or substantial plot elements, etc.
You should try in the option to indicate that credit negotiations (disputes) will adhere to WGA standards and arbitration guidelines. If the WGA backs him on his desire for credit, then so be it. But it keeps someone from bullying their way into an undeserved credit just because you didn’t protect yourself.
Good luck!
Chip, you wrote this a couple of years ago. Do you think everything still stands? I may be entering into an option pretty soon.
Thanks for this article!
Hi Dan —
Yes, I think by and large the concepts are the same.
The going market rates for various items — percentage of budget, size of bonuses, etc may change with the industry and economy. My last option included a selling price of 2% of budget, for instance, but I negotiated a floor and a ceiling. No less than X, no more than Y.
I chose the floor as equal to 2% of what I felt was the minimum likely budget to do the film on a shoestring but still do it justice (a 7 figure number). The ceiling was actually pitched by the producer, and equated to a tens of millions of dollar budget, which I was totally comfortable with.
But I think the concepts here, the *idea* of locking in your credits, rewrites, and passive payments, and bonuses, are still totally reasonable starting places for negotiation.
Great article – and thanks – some stuff I already knew, some I didn’t! B-t-wubs, I’ve already hip-pocketed a great lawyer for if my action script gets optioned/sold – a great attorney can be very well-worth his/her 5%! 🙂
Thank you very much for the article! This kind of information is hard to come by in South Africa 🙂
Thanks Chip, I find this article really helpful. I’m optioning a Tv series soon and couldn’t have read your article at a better time. Keep it up bro!
Chip for first time writers like myself that are very busy sharing work and getting a feel for the craft, what measures could we take to protect work before we even get behind the desk of an entertainment lawyer?
In the rough event that someone steals your work or even partially, is it worth attaching a contract of your own loosely based on other contracts so smaller independent producers don’t think you’re a push over?
I’m sure writers starting out don’t want to end up in litigation having to prove IP even with proof in hand.
Hey Chip!
Regarding 11 – WGA and Credits Protection… Do you have any more info on this?
I am a Canadian non-WGA writer working with a non-WGA signatory producer/production company who wants to option my script and set it up at a WGA signatory company. I haven’t found anything on the WGA website, and through google searching I’ve found one article that seems to say the opposite. (http://www.filmindependent.org/news-and-blog/im-a-non-union-writer-will-i-eventually-get-wga-benefits-for-my-script/#.Uuy6RHmAZuY)
Cheers!
You are the best! Negotiating my first Option and I don’t have a lawyer so thank you!!!! I’m not walking in blind!
If you have a great entertainment lawyer, do you need an agent? Or can you ask your lawyer to partner with you under a contingency fee? How does that work? Thank you for sharing all of your knowledge!
Please how do I get my script registered,or rather, must I get my script registered before getting started in the business of selling? I live in Africa but the selling process is in U.S.A. Thanks.
This is really enlightening, thank you! And it’s well written. Hey, you’d make a good screenwriter! Would love to read some of your film work. Cheers, and thanks again for helping out your fellow writers out here.
Thanks, Ilana. There’s a couple of short unproduced screenplays here if you’re interested: http://chipstreet.com/writing-samples/
Chip. I am in negotiations to option my first script. Is it standard for a producer to place a floor and ceiling on a 3% percentage payout of the films budget?
Not many articles that are so thorough without causing head aches. Thank you for this.
Hands down the best explanation of options deals I’ve read, and greatly appreciate the straightforward approach with no bells and whistles that ask me to pay to know the “final big secret.” I know some writers have to make a living that way, but I’m glad you don’t!
As a complete newbie who is just now shopping a sitcom (but currently writing a feature film), this info is beyond invaluable. Safe to say, most of this is completely new info to me. THANK YOU THAN YOU THANK YOU!
Just wanted to say thanks for taking the time to put this out there. I’m in the position now where an exec has come on board my indie screenplay and agreed to raise money , but will then stay on as producer and take a fee plusbackend profits (fair enough). The monies raised will be going through my own company so I guess that’s a co production right. Thing is the budget will only be 250-300k so I don’t wanna be greedy and take a producers fee (i want as much as poss in the pot to pay cast/crew) but would rather negotiate a writer’s fee and backend should the film be a ‘paranormal activity’. Oh, I’m directing too, so will want a small fee for this too, but like I say happy to waive a producer fee. Does that seem fair?
Genuinely grateful for this article, really useful stuff, thanks again ?
Without really knowing the nitty gritty, sure, that seems reasonable. Your choice to turn down a fee so that cast and crew can be paid better will go a long way toward getting them on board and dedicated to supporting your vision as the director. Is this exec getting paid based on performance? In other words, out of the money they raise? I’d look at that. But all in all, get the money on the screen. Good luck!
How does a beginning writer even afford an attorney? From all I’ve ever heard, they are expensive! Can you set it up that they get paid AFTER you get paid? Or even a percentage (like an agent)?
And don’t agents kind of act like an attorney (looking over contracts)?
Great article. Thanks Chip!
Yes, they’re expensive. Yes, sometimes you’ll spend the money to have them review and mark up a contract, and then still not get the deal. Lost money? Maybe. Better than getting royally screwed when you do get a deal? Yep.
I look at it as overall learning experience, and as we become more familiar with what we *could* ask for and what we feel we *must* ask for, we get better at watching out for our own interests and guiding our attorneys to focus on the things we find important (they do work for us after all … we can say ‘ask for this’ or ‘don’t ask for that’.
That’s why I created the post, to leapfrog writers to understanding the basics *without* having to pay a lawyer to gain this insight the way I did. So you can pay for fewer hours of legal guidance, because you can know what you’re interested in asking for. (BTW the hourly for your attorney will probably be in the $300+ per hour range … but don’t quote me on that)
To your other questions, yes you can have a relationship with your attorney whereby they work for a percentage. But that’ll happen either when you have a blockbuster screenplay that’s got the whole town abuzz, or you’re an established and proven commodity that they know will generate income.
And yes, agents look over contracts, but they are no substitute for a lawyer. I’d rather have a lawyer and no agent than an agent and no lawyer. (Good entertainment attorneys working in Hwood are well connected and can help you place your script or land you an agent if they are in love with it.)
Hopefully, one can introduce you to the other and they’ll work and play well together.
Chip, would you have a copy of a sample contract or a template of some sort? We are starting an ultra low budget shoot with an actor who is well connected in the field the documentary is being filmed for. Since there is not much of a budget we want to offer a percentage of rights to the final product. Any insight would be greatly appreciated.
This post is amazing ! You’re my new hero. Thank you so much for taking the time to explain every single details in such a thorough yet accessible fashion!
I’m into series and about to struck a deal with an early stage producer on the project I’m developing. Do you know anything about this world ? Are there big differences ? I’d appreciate some guidance very very much…
Thank you for this information. I have been approached by a screenwriter who mentioned movie options for my novel. So I’m here doing my homework. Very enlightening mini-course.
This is, without a doubt, THE Most informative article I’ve read regarding the business end of screenwriting and I appreciate you so much for sharing it with Everyone. I am in the process of doing my 1st deal. My director has shared the script with a few key actors and has found a Producer. But have no interest in selling my script or giving up all of my rights. I have an agent who has the ability & connections with major sponsors and feels that she can get 3 to 5 MM to more than cover the budget our project. How would you advise and/or suggest I move forward with this situation?
Hey, Charlie – congratulations! I’m so glad you’re finding the articles helpful. I’m no lawyer, so I’d defer to the expertise of your agent AND a good entertainment attorney… but here’s a few observations to make sure I understand.
>> You and your director are partnering on this project to find producers and funding. Do you have an agreement in place (in writing)? What happens if you or your agent find producers and funding who want to use a different director (very likely unless your director has success to show) … are you open to that? Or can your director friend screw up a deal like that by withholding due to some kind of contractual equity ownership in the project?
>> Your director is sharing the script around with people… is the script copyrighted? Not “registered with the WGA” but copyrighted with the federal govt? I sure hope so.
>> Your director has ‘found a producer.’ Does that producer have the resources to do the film right, AND get it a distribution deal? Can they match what you think your agent can deliver? Then option to that producer (reference the article for more on that.)
>> Is your agent suggesting that the producer your director has found does not have the same resources to bring to bear that s/he might be able to (the 3-5MM you mentioned)? Does your agent truly have those connections? If so, are you not letting the agent pursue those contacts, in favor of what your director is pursuing? Why?
>> If this producer your director has found can’t muster 3-5MM but you’re confident your agent could, I would let my agent pursue these other options. Give them time to find that 3-5MM. Whatever is reasonable. If the agent believes in your project and has the connections, 90-180 days should be plenty to see if they can deliver. Not to close the financing, of course, but at least have a sense if it’s doable.
That’s my .02 cents… I hope you find a path to getting your project made! And congrats again on all this great interest in your screenplay… good job! Please keep us posted on what happens. 😀
Such great information. I can’t thank you enough. 🙂
Thank you, Laura! Glad to have you here. 🙂
Thank you so much Chip. Im currently shopping my first project. Your article was very helpful and an easy read. People think its easy to sell a script, but its not. I work for a production company and sit right next to execs of networks, but its difficult to get them to take you seriously. I have my attorney on deck, and i will just continue to network and write.
Atlanta, Ga
So happy you got value from the post, Ms. Brooks… It’s true, it’s not easy, and sitting next to execs is no guarantee of access.
Good luck, and keep us posted on your success!
Thanks so much for this, Chip. This has been incredibly helpful. Maybe you could comment on this. I was excited to get an option contract last week, but while I liked the producer in conversation, I hate the contract. Do producers often hand out heavily one-sided contracts as a beginning position or is this a bad omen? In a nutshell, terms include 18 mo/18 mo option period; grabby rights (it’s a novel adaptation and they want all book rights, character rights, sequel, etc.); unlimited “reasonable” free rewrites as work-for-hire and they keep everything; WGA minimum with no points or backend; and they indemnify themselves (“save harmless”) yet I can be sued. I realize that any point might be negotiable, but does one normally expect to see so many problems? Of course, low upfront option doesn’t pay for many attorney hours, either. If this IS normal, I assume that I’d want to work out as many issues as I can myself, and bring in the attorney later. Thanks if you can comment.
Incredible information, Chip. Thank you for the insight, it truly was/is helpful.
I have a question regarding optioning an article – do I have to option an article if the screenplay I have in mind entails a fraction of information from the article?
I’ve based my screenplay off of research and documents of a known family member, but there is this one article that goes in to detail about the particularly person I am writing about. Since I’m not entirely basing the screenplay off the article, does that make me free from having to option the rights from the author?
Thank you so much for you help.
Hi, Pat – glad you found the article helpful!
I am not a lawyer, but copyright protects expressions of ideas, not the ideas (or in particular in this case) the facts themselves. My *guess* is that if the information (facts) from the article are in the public domain, you can use it so long as you’re not quoting the article verbatim. That said, an IP attorney will be able to answer definitively.
Wish I could be more specific but that’s what lawyers are for.
Good luck!
Chip,
Thanks for the reply! Yes I figured contacting a lawyer would be best but wanted to ask you – I imagine you are correct, as long as I’m not taking words from the article verbatim I’ll be ok. But since it’s a screenplay it becomes tricky how to take the words verbatim from an article – the article mainly chronicles the actions of the particular person I’m writing about. I could easily get those actions from speaking to a spouse, mother, father, brother, sister, etc.
I’ll contact a lawyer soon.
Thanks again for your help! It means a greats deal.
Amazing article Chip, thank you so much. As I type I am waiting for the postman to arrive and deliver a hard-copy option contract of a film I recently completed and I really didn’t know what to expect until I read this article… I am not sure how long the option will be for, if there is an option fee involved etc.. but reading this article has really un-muddied the water for me somewhat… so thanks again for your time and expertise.
Fingers crossed the contract is decent! Although I do want to be a team player like you say and too see the film to fruition, I also don’t want to be taken for a ride, you know?
Thanks again.
Mark.
From Ireland.
Congratulations, Mark! Always happy to hear that the articles continue to provide value. 🙂 I’d love to hear how it works out for you. Please do check back in and keep us all posted.
Hi Chip, I too have found your article really valuable. We’re going into negotiations with a major studio soon. I do have a top entertainment lawyer who is working on spec, but as such we don’t have him on tap. My biggest question at the moment and curious if anyone has experience on this – we want to retain the rights to our project and everyone is telling us that’s unheard of with a major studio. Is there any scenario you know of where a studio has been willing to allow the writer and co-producer (we’re also co-producing) to retain the rights? We’re wondering how we can make this proposition attractive to them. Thanks so much.
Hi Leanne — congratulations on getting this far! Glad the article was helpful.
Not quite sure how to respond to your question though… what do you mean by ‘retain the rights’? Do you mean to the screenplay you’re selling, or to the property overall (the characters, future stories, associated products, etc?)
I’m not a lawyer, but remember, you can’t protect ‘an idea’… only its expression. So, your screenplay is the protectable asset, and when you sell it you’re selling the rights to it. But depending on your deal, you’re selling *just* the rights to make a movie (and you retain the rights to things like Literary adaptations, etc…) or you’re selling *all* rights in any media etc etc (insert legal jargon here.) AFAIK that includes rights to the characters and the universe.
And when you sell it, you can insert stipulations into the contract regarding your ‘first right of refusal’ to do rewrites, to write sequels, etc. based on the characters and the universe.
If you don’t write those future installments, you can/should get credit (and compensation) as the originator, with some kind of ‘based on characters created by’ or ‘based on an original story by’ credit.
Now, I don’t know how likely it is to retain some rights when you’re working with a major studio as opposed to an indie prodco, but your attorney should be trying to get you all those protections regardless… ask, if you’re not sure.
And I suppose at the end of the day, what’s important is selling the screenplay… if you’ve got a major studio ready to buy, you’ll have to do the calculus about how important those things are to you … if they’re not offering them and if you think you’ll get another/better chance like this and want to refuse, then go for it. If on the other hand what you want is that first big sale (and the paycheck that goes with it) to launch your career, you might be willing to give up those rights. After all, do you imagine this is the only awesome storyverse you’re going to create? Hopefully not… and next time, your payday may be bigger thanks to this sale.
I wish you luck, and would love to hear what happens!
Cheers,
Hey thanks so much Chip!! We’re hoping to do what seems to be the unthinkable and enter into a co-production deal where we raise half the capital ourselves so that we can have a partnership rather than selling the rights to the entire concept (it’s revolutionary and the studio will want to be involved across all platforms). If we manage to achieve this feat I’ll be sure to share the news!!
Hi Chip,
What should I do if a producer in India ask to read my screenplay? I’ve had the conversation, below, with a producer in India and he is asking to read the script. What is to protect me from him taking my script which is about a Russian student coming to America and having it re-written as an Indian student going to America (or any other country)?
Thank you for reading this question.
Charlie
===============
You
Hello Mr. Singhania,
Thank you for adding me to your network and your interest in my script 17 in April. I feel very confident that this story/script can be re-written to fit a micro budge, or macro, for that matter. I would be very interested in discussing some possibilities with you to know more about what you have in mind.
Sincerely,
Charlie
Vivek Singhania
would you then suggest I read the script?
Charlie Frazier
You
Yes. I would like to know exactly what your plans will be for this script, should you decide to move forward and how/where I fit in your plan.
Vivek Singhania
ok let me read it and then we can engage in discussions
Hey Charlie, sorry I didn’t get a response to you. All I can say is that your script *should* be registered with copyright.gov of course, and with the WGA or WGAE (whichever is appropriate.) That way your script is protected… but I’m not a lawyer, so can’t speak exactly to how that applies to international protections.
All that said, you can’t protect ideas, only their expression. Anybody can write a story about a foreign student coming to America to go to school. You’d only have a case if they used significant elements of your unique expression — characters, plot points, etc, that were clearly recognizable (again, not a lawyer.)
I hope you found a path that worked out for you. Good luck! Let us know what happened!
Thank you so much for this article. I have just been offered my first option and your advice has proved invaluable as I am working out the details. Much appreciated!
Congratulations, Paul! Glad the article was valuable. Best of luck and keep us posted!
Thank you, Chip! I have an important upcoming appt. with a production company interested in my script and feel much better prepared having read your invaluable tips! So helpful!