by Ken Aguado (@kaguado)
Whenever I speak to aspiring screenwriters, I go out of my way to emphasize the importance of being legally prepared for the job. Not surprisingly, most new writers come to their interest in film and television from an artistic perspective, and sometimes things like contracts and other legal matters are not high on their list of priorities. And let’s be honest, it’s likely many of them became screenwriters because they were able to convince their parents they weren’t cut out for law school. I can relate.
Of course, most aspiring writers know that contracts are a fact of life, but perhaps they believe they’ll worry about it when they sell their work — someday.
There are three main reasons this thinking is a mistake:
- Filmmaking is a business, and businesses run on contractual agreements.
- Contractual agreements help define the business relationship between people and/or companies.
- If you don’t define the business relationship with your collaborators or employers, they may not be your collaborators or employers for long.
Before I get to my list, let me say two things.
First, I’m aware that reading my list is not the same thing as going to law school. But if you work as a screenwriter, you’re likely to run into most or all of these agreements. Do you really want them to be a surprise?
Second, all aspiring writers should start to cultivate a relationship with an entertainment attorney. Frequently, new writers are so focused on getting an agent or manager that they don’t realize their first representative is likely to be a lawyer. If you’re willing to pay, you can always get a lawyer. And when your first deal comes along, you don’t want to have to tell the buyer, “Hey, hang on for a month while I try to find someone to make my deal.” Deals are fragile in Hollywood. You should have a relationship with an entertainment attorney before you need one. Make it one of your networking goals.
There are many kinds of contracts used during the course of the filmmaking process, and below are my top five for screenwriters.
Sometimes (misleadingly) called an “option agreement,” this kind of agreement is used to secure the underlying rights (to your screenplay, for example) that will become the basis of a film or television production. Most screenwriters have heard of this kind of agreement. It allows the buyer to control your screenplay for some period of time without committing to the higher cost of purchasing your screenplay to actually produce the thing.
Essentially a labor contract, this is an agreement a screenwriter might sign if they’re being hired to write (or rewrite) something. A writer agreement can run ten pages or longer and includes many terms that are subject to negotiation. This kind of agreement is usually a form of “work made for hire” contract. “Work made for hire” is fancy legal talk for an agreement that allows your employer to own the artistic work they’re paying you to create.
A collaboration agreement is used when two or more individuals put their efforts together to achieve a common goal, for example when two screenwriters decide to co-write a script. It’s a relatively simple agreement that specifies the goals, assorted responsibilities, ownership, and other basic aspects of the relationship between the collaborating parties. There is a sample collaboration agreement available for free download on the WGA website. Check it out. Never co-write a script without having a collaboration agreement with your co-writer.
As the name implies, 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 for doing so. 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.
In the last 20 years, the business of selling scripts has become much tougher. This has led to the use of a less formal contract called a shopping agreement. Veteran writers often loathe this kind of agreement because they think it’s unfair, but here’s what you should know. A shopping agreement is typically initiated by a producer. The advantage for the producer in this arrangement is that she or he 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 the writer has not had to surrender control of the rights. This gives the screenwriter a lot of power should the producer find a proper buyer for the script.
Of course, you should never sign any contract without having an entertainment lawyer represent your interests. Just make sure you use an entertainment lawyer and not Uncle Ed, who does elder law.
Bonus: Submission Release Forms
Writers with no representation are often asked to sign this kind of contract before they are allowed to submit their screenplays for consideration by agents, managers, producers, production companies, or sometimes events like workshops and festivals. If the writer signs it, they lose their right to sue if their work is subsequently ripped off by the other party to the agreement. The conventional wisdom in Hollywood is that a writer should never sign one of these, and I agree. But I also know that many new writers are desperate to get their foot in the door – any door. I am sympathetic.
So, let me summarize my position:
- Rather than signing this kind of agreement, work harder to find a way to submit your work through legitimate channels where signing a submission release will not be required. These legitimate channels are typically friends, friends of friends, a lawyer, and so on.
- Writers who worry about their scripts getting ripped off sometimes “over-value” their work, but the vast, vast, vast majority of submissions are in no danger of being stolen. (Let the angry comments begin?)
- Consider the reputation of the producer or company that is asking you to sign. Do some research.
- If the only alternative is your script sitting on a shelf or on a hard drive forever, what do you have to lose?
Again, I side with those who say never sign, but I also understand the desperation some new writers feel about getting their work into the Hollywood system.