Filmmaking | How To's | Screenplay Doctor | Screenwriting

Ask the Screenplay Doctor: Contracts and Common Sense

30 Apr , 2011  

Written by Susan Kouguell | Posted by:

This month, the Screenplay Doctor delves into the tricky subject of getting swindled. E-mail screenwriter@newenglandfilm.com to have your question answered in an upcoming issue.

My responses to this month’s readers’ questions share a subtle yet common theme — follow your instincts and use your common sense when beginning a new collaboration with other film industry folks.

In my book, The Savvy Screenwriter, I write about my own gullibility when I began in the film business, and openly admit that I uncharacteristically lost my common sense and did not trust my gut instincts. The reason? I wanted to write! Although I had already written and collaborated on six short internationally award-winning films, which are in the permanent collection of the Museum of Modern Art, among others, the prospect of moving to the next level and writing feature films, was so exciting that my (then) trusting nature became ridiculously even more trusting, and I was regarded as an easy target, (naïve) in the eyes of independent production companies, studios, and agents. (Yes, even my own then agent.)

Learn by my mistakes and don’t be afraid to ask questions, such as:
• Ask producers if they have financing or talent in place for the project for which they want to hire you.
• Ask producers if they have produced any projects in the past and if so, the names of the projects so you can do some research on this. (You can do an Internet search to learn the success and/or failures, any press, and so on.)
• If you have representation, don’t be afraid to ask how your agent and/or manager plans on working with you and how they work with their clients. You must be in sync with your representation and set up a strategy that best fits who you are and your work.
• Hire an entertainment attorney to review your contract. And yes, you absolutely must have a contract to protect yourself and your work.
If you do not ask questions, you might just repeat my early mistakes and work with people who do not share your vision on a project and are not truly looking out for your best interests.

I am a Student Producer/PA/DP. I am lost as far as the details of the script acquisition phase.

I have a relationship with a production company in South Florida. It’s love-hate as with any employer. What concerns me is I was never happy with their practices of payment and nonpayment of non-union employees. I have seen them treat freelancers very poorly. Now I have been approached to write a feature for them. I am concerned that I may not be treated fairly. The usage on non-union talent for an indie feature (total production costs below 1.2M) has its own specifications from the standards set by the WGA. What is the proper procedure for a non-WGA registered production? What they are offering is way below WGA average, but the most I have been offered for a script.

Is this just a case of ‘If it seems to good to be true, it probably is’?

The treatment they pitched wasn’t great, but they liked my general artistic direction for changing the feature. I should at least have them sign a non-disclosure agreement before we continue talks? Is that common practice? What about ownership of the script? If they don’t produce it, I can’t shop it with other larger production companies locally or elsewhere. I may be getting too emotionally invested, should I just write the script in my head (very different from original treatment provided by the So. Fla production co.) and keep 100 percent ownership? Is it still something I can put on my ‘resume’ if it’s write-for-hire? It isn’t very economically lucrative because of the low pay, but should I just hire an attorney?

Sincerely,
Suspiciously Gullible

Dear Suspiciously Gullible,

Your signature “Suspiciously Gullible” and your smart questions reassure me that you are listening to your instincts.

Let’s review sections of your letter:

You write: “It’s love-hate as with any employer.”

My response: Do not expect to have a love-hate relationship with your employers; this should not be the norm. If a company is interested in hiring you, it should be because you are a talented writer, share the same vision for the project, and that you and they are a good fit — and not that you are inexpensive to hire or can be manipulated into writing countless rewrites for one fee, and so on.

You write: “What concerns me is I was never happy with their practices of payment and nonpayment of non-union employees. I have seen them treat freelancers very poorly.”

My response: Since you do express your concern, and state that you have never been happy with their practices, and so on, I would ask bluntly, why on earth would you want to work with them? Isn’t the writing on the wall that most likely you will share the same fate as other freelancers with whom they worked?

Regarding your questions about “proper procedure for a non-WGA registered production,” this is something you need to ask a lawyer, agent, or manager. This is not my area of expertise since this is more a legal question.

You write: “Is this just a case of ‘If it seems too good to be true, it probably is’?”

My response: I think you know the answer to this question already but just to make sure you do — it absolutely sounds too good to be true. Because the company is not signatory to the WGA (Writers Guild of America, www.wga.org) then “common practice” can be a slippery slope; they might not sign a nondisclosure agreement. As for ownership of the script — and again, I am not an attorney and it would be spelled out in your contract that you would not sign until you are absolutely happy with it after your attorney has reviewed it with a fine toothcomb — the chances are if they are hiring you, you are a ‘writer-for-hire’ and generally speaking, that means they own the script. However, you could ask to put in your contract that the rights to the script revert back to you after a certain amount of time. (Generally, I would say this is a long shot since they pitched an idea to you, you did not pitch them your idea from which you are writing the screenplay.)

You write: “I may be getting too emotionally invested, should I just write the script in my head (very different from original treatment provided by the So. Fla production co.) and keep 100 percent ownership?”

My response: I’m not sure what you mean by “writing the script in your head” so I can’t address this. You continue by stating “and keep 100 percent ownership: — I am not exactly sure what you mean by this either, and I can’t say this is an absolute because I am not an entertainment attorney, but if they have pitched an idea to you, and you then go and write the screenplay on your own, because this is not your original idea, you are facing ‘theft of ownership of ideas’ and they can sue you.

And finally, you can definitely (and should) list a writer-for-hire job on your résumé and absolutely hire an attorney to review your questions with you. If you decide to move forward, always get a contract.

I’m writing because I actually need to find writers! I’m a director and just moved back to Boston after completing the AFI Directing Workshop for Women; I have an idea for a feature I want to shoot in Boston but really need a great writer I can collaborate with. Any advice?

Best,

Deborah

Dear Deborah,

Congratulations on completing the AFI Directing Workshop!

There are several things you can do to find writers with whom to collaborate. The first you have done by writing this letter; my educated guess is that writers will contact you immediately after reading this. You can also post the details about your project — such as if this is a WGA signatory project, the genre, if this is a feature or short, fiction or documentary — in this and other screenwriting and film publications, as well as posting notices at various colleges and universities that have film and writing programs.

As is my mantra, always get a contract, and make sure that you and the writer lay your cards on the table and spell out your expectations about the project, including deadlines and vision for the film.

Susan Kouguell, author of The Savvy Screenwriter: How to Sell Your Screenplay (and Yourself) Without Selling Out! is an award-winning screenwriter and filmmaker. Susan teaches screenwriting and film at Tufts University, and is chairperson of Su-City Pictures, a motion picture consulting company founded in 1990 where she works with over 1,000 writers, filmmakers, and film executives worldwide. ( www.su-city-pictures.com; su-city-pictures.blogspot.com/)

You can follow my Su-City Pictures, LLC Facebook fan page and SKouguell Twitter page to receive more Savvy Tips about how to write, structure, and sell your screenplay.


Susan Kouguell, author of The Savvy Screenwriter: How to Sell Your Screenplay (and Yourself) Without Selling Out! is an award-winning screenwriter and filmmaker. Susan teaches screenwriting and film at Tufts University, and is chairperson of Su-City Pictures, a motion picture consulting company founded in 1990 where she works with over 1,000 writers, filmmakers, and film executives worldwide. ( www.su-city-pictures.com; su-city-pictures.blogspot.com/) You can follow my Su-City Pictures, LLC Facebook fan page and SKouguell Twitter page to receive more Savvy Tips about how to write, structure, and sell your screenplay.