You can find a lot of opinionated blowhards like me telling you how to write your script, but there aren't many resources for people who need answers for the more business-oriented questions. I'm talking about the legal details of option rights and how spec sales actually work. Well, worry no more. Friend-of-the-blog Jeff Willis has started a new blog devoted to these topics called All Writes Reserved.
If Jeff's name sounds familiar, you've probably seen some of his tweetstorms, some of which I've archived elsewhere on this site, such as Creative Rights Advice for Screenwriters.
His most recent post this week covers the topic of "Sterile Scripts" - drafts written while under contract to a particular entity.
What happens to those drafts written while the work was under option?
Remember that the script is legally not owned by the writer during an option period; it’s owned and under the control of the company. If writing services are included in the deal, those services are most likely in your contract as a work for hire, meaning that in exchange for the money you’re being paid, the results and proceeds of your writing are owned by the company that’s paying you (i.e., you don’t own that draft the way you own a script you wrote on spec).
Think of it like an artist who’s commissioned to do a family portrait. The money is what the artist receives in exchange for the work. He doesn’t then also get to keep the portrait after he’s done; the portrait belongs to the family that paid him to create it.
The same is true of drafts and rewrites and polishes that the company is paying a writer to perform. Even if the rights to the original script are returned to you, those drafts you wrote for the company aren’t. Those drafts then become sterile scripts… a draft of a script that the company owns but cannot produce because they don’t own the rights to the underlying material (your original script).
Among other topics he's covered are:
Power dynamics in negotiations
Submission Releases
Conditions Precedent
Non-guild Deals
Quotes
Script Sale Breakdown
Intellectual property
Showing posts with label script options. Show all posts
Showing posts with label script options. Show all posts
Thursday, January 12, 2017
Tuesday, November 26, 2013
Jeff Willis: "When an option expires, what happens to the writing you did for the producer?"
Today brings another guest post from Jeff Willis. Jeff is an executive currently working at the Weinstein Company in business affairs, but he's also a screenwriter/producer who co-written a feature due to start production next year, as well has having finished two commissioned rewrite assignments.
Aside from his earlier guest post here, Jeff has become known for his Twitter lectures of DOs AND DON'Ts. It's a good idea to follow him there because you never know when he's going to drop some knowledge. This week, Jeff touches on a topic that I have to admit, I had never even thought of discussing here.
WHEN AN OPTION EXPIRES, WHAT HAPPENS TO ALL THE WRITING YOU DID FOR THE PRODUCER/COMPANY?
As much as I enjoy tweeting succinct tidbits of information on Twitter (follow me @jwillis81), the fact is that some of the concepts and practices in the entertainment industry require more than just 140 characters to fully explain. Thankfully, The Bitter Script Reader has kindly agreed to host some of my more in-depth articles that examine screenwriting from a business perspective.
I thought I’d start off with a tricky situation, but one that’s probably familiar to a lot of writers out there who have had their work optioned. The question: What happens to all the work you do for a company if their option lapses and the rights to the project return to you?
When you perform writing at the instruction of a producer or production company, it’s typically as a “work for hire” situation. Just like a receptionist or a mechanic or an accountant, they are paying you to provide a service (in this case, creative writing rather than answering phones, fixing a car, or filing a tax return). Naturally, they expect to own the end result of those services they’re paying for, just like you’d expect to own a product once you’ve paid for it.
Where this becomes a little tricky is when the company no longer controls the rights because they didn’t renew or exercise their option. On the one hand, they paid you for a service and have a draft of a script they own as a result. On the other hand, they no longer control the rights to the project.
That’s when they have what’s called a STERILE SCRIPT.
They still own the draft they commissioned you to write (it was a work for hire after all), but they can’t do anything with it because they don’t control the rights to the property anymore. They no longer have the right to send it out, make further changes, sell it to someone else, hire another writer to work on it, etc. without your permission.
The important thing for writers to note is that you may have the rights back, but you don’t have any claim to what’s in that sterile script. The revisions made to the script in that version are lost to you because you performed those writing services for an employer.
Ultimately, that leaves you both in a bit of a Catch-22. The company can’t do anything with that sterile script unless they somehow re-acquire the underlying rights to the property from you, and you can’t do anything with that sterile script either unless you can somehow buy it from the company (typically for the amount of money you were paid to write it, plus interest) or otherwise get them to agree to let you have it.
This is why it’s incredibly important for a writer to be organized and methodical about keeping track of their work once they start dealing with option periods and revisions made at the request of other people as works for hire. There may very well be a point when a sterile script situation happens, and you want to be able to easily and efficiently go back and say, “Okay, here’s the latest draft before I did any revisions for that producer, so this is the one I completely control.” The last thing you want is to get the option back, set it up somewhere else, and have the first company come back around again claiming that you’re using the sterile version of the material that they own.
Once you start working with prodcos and performing works for hire, I would strongly recommend some kind of easily organized system for your drafts, such as including a date for each one in the file name itself and keeping a detailed log of the script notes you’ve received or been assigned when rewriting at someone’s request. Make it as easy on yourself as possible by being 100% clear about which material is owned by the company engaging you to write, and which material you can work with if the rights lapse and find their way back to you.
Jeff made an appearance this week on Josh Caldwell's podcast Hollywood Bound and Down. I've not had a chance to listen to it yet, but Josh really knows how to lead an interesting conversation. All of his interviews are worth listening to (and I'm not just saying that because I've already done his show.) You can download it here, or listen to the embed below:
Aside from his earlier guest post here, Jeff has become known for his Twitter lectures of DOs AND DON'Ts. It's a good idea to follow him there because you never know when he's going to drop some knowledge. This week, Jeff touches on a topic that I have to admit, I had never even thought of discussing here.
WHEN AN OPTION EXPIRES, WHAT HAPPENS TO ALL THE WRITING YOU DID FOR THE PRODUCER/COMPANY?
As much as I enjoy tweeting succinct tidbits of information on Twitter (follow me @jwillis81), the fact is that some of the concepts and practices in the entertainment industry require more than just 140 characters to fully explain. Thankfully, The Bitter Script Reader has kindly agreed to host some of my more in-depth articles that examine screenwriting from a business perspective.
I thought I’d start off with a tricky situation, but one that’s probably familiar to a lot of writers out there who have had their work optioned. The question: What happens to all the work you do for a company if their option lapses and the rights to the project return to you?
When you perform writing at the instruction of a producer or production company, it’s typically as a “work for hire” situation. Just like a receptionist or a mechanic or an accountant, they are paying you to provide a service (in this case, creative writing rather than answering phones, fixing a car, or filing a tax return). Naturally, they expect to own the end result of those services they’re paying for, just like you’d expect to own a product once you’ve paid for it.
Where this becomes a little tricky is when the company no longer controls the rights because they didn’t renew or exercise their option. On the one hand, they paid you for a service and have a draft of a script they own as a result. On the other hand, they no longer control the rights to the project.
That’s when they have what’s called a STERILE SCRIPT.
They still own the draft they commissioned you to write (it was a work for hire after all), but they can’t do anything with it because they don’t control the rights to the property anymore. They no longer have the right to send it out, make further changes, sell it to someone else, hire another writer to work on it, etc. without your permission.
The important thing for writers to note is that you may have the rights back, but you don’t have any claim to what’s in that sterile script. The revisions made to the script in that version are lost to you because you performed those writing services for an employer.
Ultimately, that leaves you both in a bit of a Catch-22. The company can’t do anything with that sterile script unless they somehow re-acquire the underlying rights to the property from you, and you can’t do anything with that sterile script either unless you can somehow buy it from the company (typically for the amount of money you were paid to write it, plus interest) or otherwise get them to agree to let you have it.
This is why it’s incredibly important for a writer to be organized and methodical about keeping track of their work once they start dealing with option periods and revisions made at the request of other people as works for hire. There may very well be a point when a sterile script situation happens, and you want to be able to easily and efficiently go back and say, “Okay, here’s the latest draft before I did any revisions for that producer, so this is the one I completely control.” The last thing you want is to get the option back, set it up somewhere else, and have the first company come back around again claiming that you’re using the sterile version of the material that they own.
Once you start working with prodcos and performing works for hire, I would strongly recommend some kind of easily organized system for your drafts, such as including a date for each one in the file name itself and keeping a detailed log of the script notes you’ve received or been assigned when rewriting at someone’s request. Make it as easy on yourself as possible by being 100% clear about which material is owned by the company engaging you to write, and which material you can work with if the rights lapse and find their way back to you.
Jeff made an appearance this week on Josh Caldwell's podcast Hollywood Bound and Down. I've not had a chance to listen to it yet, but Josh really knows how to lead an interesting conversation. All of his interviews are worth listening to (and I'm not just saying that because I've already done his show.) You can download it here, or listen to the embed below:
Tuesday, June 23, 2009
Interview with COLLEGE and DEMOTED Screenwriter Dan Callahan: PART II – Getting an Agent and Selling the Script
Part I – The Writing Process
Our chat with screenwriter Dan Callahan continues as he answers the question most aspiring writers want to know: “How do you get an agent?”
Dan Callahan: There’s all these levels to writing movies. First is coming up with a good idea, or a simple idea like College, that’s so simple that people are like, “Why didn’t I think of that?” That’s hard enough as it is. It’s hard to come up with something that’s original, or something that’s not so original but that you can put your own twist on it. Then you’ve gotta [write it up], and then you have to finish the draft, which a lot of people don’t do. Then you have to show it to people, and get notes, and make all those changes. Then finally it’s like “Okay, I did ALL that stuff and I have a script” and then it’s, “Shit. I don’t have anyone to send my script around. I don’t have an agent. I’m just sitting on material that I’ve worked months for and how do I get it out to the community?”
Getting an agent is impossible because there’s that Catch-22 everyone complains about where production companies won’t look at your stuff unless it comes through an agent. If I can’t get an agent, how can I get it in front of [them?] It’s very rare you can just query an agent – specifically at the big agencies – and they’re gonna take a look at this thing. It’s happened, I heard a story… I think Hitch was a query letter, so I’m told. So it does happen, but I think it’s very difficult.
Query letters for the most part don’t work. A lot of times there’s legal reasons for that…. At the same time [agents] are working with professional writers, trying to get them work, so do they really have time to read some dude from wherever who says he wrote the next great script?
The long story short is that Adam had a friend at an agency. It’s one of the easiest ways in – checking all your contacts and all you need is one. Whether it’s a friend of a friend of a friend who works at a production company or is already a screenwriter, or a director, producer… It’s finding someone you know, or have a connection to who’s in the business.
The fact that Adam and I moved out here, and lived out here for some years… we had contacts. One of the reasons he knew the girl at this agency [was that he lived out here in LA.] If he’d been in Chicago, he wouldn’t have known this person. So it’s important that if you want to be a professional screenwriter, you gotta live in LA. Spend numerous years out here and over the course of those years, you’re gonna meet people in the business. You’re gonna have other friends trying to do the same thing you do and eventually one of those people are gonna be in a position where they can help you out or they can at least pass the script along to somebody.
And that’s exactly what happened. We gave it to a friend at ICM. She had read pages earlier and liked it and then when we finished the script we went back and gave it to her. And it was sort of bad timing because she liked it… and then told us she was quitting [the agency business.] We were like, “Ugh… just when we think we’ve got an agent at a big agency, she says, I’m leaving to be a writer.” She’s gone on to a very successful career of writing books.
What was nice of her was before she left, she passed the script off to a colleague of hers at ICM. He was from Chicago. Adam and I are both from Chicago, so she thought we’d all hit it off. We thought that a guy would be good for something like College… She gave it to him, a guy named Nate Ross. He read it on vacation and came back and was like, “I’ll take it out next week.” It literally was that quick. He read it. He knew what it was. He liked it. I don’t even remember if he had any notes. If he did, they were minor. Stuff we could fix in a week. He basically said, “Fix this. Get it ready. We’ll take it out next week.”
Bitter Script Reader: Wow.
DC: But the reason we had our agent was because we felt we wrote a strong piece of material that was professional in every way, that was funny, and all that stemmed from all that stuff I was talking about. That all lead to this moment and we got our one shot with this guy and he felt we delivered and because of that, he took us on. Now, if he’d hated College… it would have been “Okay we need to figure out another way into the agencies.” Maybe we wouldn’t have ended up at a big agency. Maybe we would have ended up at a smaller agency. It might never have sold. But the fact of the matter is, when we had that opportunity, the script delivered and that was the start.
BSR: Did it sell fairly quickly once you went out with it?
DC: No. It didn’t. You’ll hear these stories about how something was a hot spec and every studio is bidding on it, but that wasn’t our situation at all. It went out to everybody and the way it usually works is your agent takes your script and he sends it out to various producers he has relationships with and the ones that like it come back and say, “We like College and we have a relationship at studio A… We’d like to bring the script into Paramount… or Sony, and that’s how it works. Generally scripts don’t go to studios. They usually go to producers first, who usually have deals or relationships and they bring it into the studio and say “Hey, this is a piece of material we’d like to do. Will you buy it for us?”
So we had multiple producers taking it out all over town. College took quite a while [to sell]. At the time there were a couple teen comedies floating around that we were competing with. A lot of studios had teen comedies that had been sitting around for a while that they were having trouble getting made, so why add another one?
BSR: Yeah, “We already have ours.”
DC: When American Pie hit there was a flood of teen scripts and it never stopped. So the studios were sitting on piles of teen comedies. They weren’t making them, but they had plenty of them so they didn’t need another one. And there were people that just didn’t like the script, for whatever reason. It’s a mixture of timing, finding the right producers and finding a studio that’s looking for a funny teen comedy.
BSR: A lot of stars have to align.
DC: And it didn’t for a while. What eventually happened was there was a producer named Rene Rigal who worked at a company called State Street, that did the Barbershop movies. He read College, thought it was funny… He actually called me and Adam and was one of the most passionate producers about it that we had talked to. The script had been dying down and we weren’t sure it was going to sell so, yeah, if there’s anyone that’s this excited about our work – that’s the kind of guy you want out there.
So Rene and State Street had a deal with Fox. They took it to Fox Atomic, who at the time was trying to do a Revenge of the Nerds remake, so they passed because it was the same thing. Then [State Street] took it to a company called Element that was independently financed. They did Waiting… they were working on Mr. Brooks at the time. And they liked it. They had money. Rene and State Street were the ones who got the ball rolling with Element and they essentially bought it.
And it’s not like they just buy it. They optioned it first, which is the normal process that happens. Now it’s “Can you get the script to where they want it?”
BSR: And it’s on you to bring it up to snuff.
DC: The general process is: agent takes script to producers. Producers take script to studios. They option the project. The reason they don’t buy it up front is, what if they don’t make the movie? The purchase price of a script can be very expensive. So generally studios don’t want to put out hundreds of thousands of dollars, or whatever it is – six figures generally – on something they may not make. What they generally do is put out a couple thousand dollars to option it, control the rights of the script for a certain period of time.
BSR: And you get paid when it goes into production.
DC: And you get paid when it goes into production. It’s not like people think when they read in the trades that something was just flat-out bought…
BSR: Yeah, Paramount just bought it and you walk in and they hand you your Ed McMahon-sized check…
DC: Yeah, [the perception is] they hand you a big check. [In reality] that’s not the case and it’s not smart business on the studio’s part. Why put up [a lot of] money when I could put up this much money, take the option and put the script in development? Now let’s see if we can get actors and a director. Now let’s get a start date. And they literally wait until that start date before you see any purchase price, because anything can happen before that.
There’s a lot of work involved when you get to that place and it’s one of the reasons you see writers making sacrifices, doing things in their script that they might not totally agree with because at the end of the day they want to get it made. At the end of the day, it’s a much larger payday.
BSR: The difference between five figures and six figures is kind of a motivating factor.
DC: Right, you want credit and you want to get paid. Now, there can be six figure options, so it can happen that you do hit the lottery on the option.
BSR: But not with two first-time screenwriters I imagine.
DC: In our case, that wasn’t it. There weren’t studios clamoring for the project. There were people circling but it wasn’t a case where people were so hot on the spec that people were just throwing money at us. We got a very small option and now it was a matter of us getting the project in a position where we could get a director. Because this movie wasn’t about cast.
Tomorrow: Dealing with notes and rewriting, and we’ll discuss casting and the comparisons to SUPERBAD.
Part III – Notes, Rewriting, Casting and SUPERBAD
Part IV – More Rewrites
Part V – Release and Reaction
Our chat with screenwriter Dan Callahan continues as he answers the question most aspiring writers want to know: “How do you get an agent?”
Dan Callahan: There’s all these levels to writing movies. First is coming up with a good idea, or a simple idea like College, that’s so simple that people are like, “Why didn’t I think of that?” That’s hard enough as it is. It’s hard to come up with something that’s original, or something that’s not so original but that you can put your own twist on it. Then you’ve gotta [write it up], and then you have to finish the draft, which a lot of people don’t do. Then you have to show it to people, and get notes, and make all those changes. Then finally it’s like “Okay, I did ALL that stuff and I have a script” and then it’s, “Shit. I don’t have anyone to send my script around. I don’t have an agent. I’m just sitting on material that I’ve worked months for and how do I get it out to the community?”
Getting an agent is impossible because there’s that Catch-22 everyone complains about where production companies won’t look at your stuff unless it comes through an agent. If I can’t get an agent, how can I get it in front of [them?] It’s very rare you can just query an agent – specifically at the big agencies – and they’re gonna take a look at this thing. It’s happened, I heard a story… I think Hitch was a query letter, so I’m told. So it does happen, but I think it’s very difficult.
Query letters for the most part don’t work. A lot of times there’s legal reasons for that…. At the same time [agents] are working with professional writers, trying to get them work, so do they really have time to read some dude from wherever who says he wrote the next great script?
The long story short is that Adam had a friend at an agency. It’s one of the easiest ways in – checking all your contacts and all you need is one. Whether it’s a friend of a friend of a friend who works at a production company or is already a screenwriter, or a director, producer… It’s finding someone you know, or have a connection to who’s in the business.
The fact that Adam and I moved out here, and lived out here for some years… we had contacts. One of the reasons he knew the girl at this agency [was that he lived out here in LA.] If he’d been in Chicago, he wouldn’t have known this person. So it’s important that if you want to be a professional screenwriter, you gotta live in LA. Spend numerous years out here and over the course of those years, you’re gonna meet people in the business. You’re gonna have other friends trying to do the same thing you do and eventually one of those people are gonna be in a position where they can help you out or they can at least pass the script along to somebody.
And that’s exactly what happened. We gave it to a friend at ICM. She had read pages earlier and liked it and then when we finished the script we went back and gave it to her. And it was sort of bad timing because she liked it… and then told us she was quitting [the agency business.] We were like, “Ugh… just when we think we’ve got an agent at a big agency, she says, I’m leaving to be a writer.” She’s gone on to a very successful career of writing books.
What was nice of her was before she left, she passed the script off to a colleague of hers at ICM. He was from Chicago. Adam and I are both from Chicago, so she thought we’d all hit it off. We thought that a guy would be good for something like College… She gave it to him, a guy named Nate Ross. He read it on vacation and came back and was like, “I’ll take it out next week.” It literally was that quick. He read it. He knew what it was. He liked it. I don’t even remember if he had any notes. If he did, they were minor. Stuff we could fix in a week. He basically said, “Fix this. Get it ready. We’ll take it out next week.”
Bitter Script Reader: Wow.
DC: But the reason we had our agent was because we felt we wrote a strong piece of material that was professional in every way, that was funny, and all that stemmed from all that stuff I was talking about. That all lead to this moment and we got our one shot with this guy and he felt we delivered and because of that, he took us on. Now, if he’d hated College… it would have been “Okay we need to figure out another way into the agencies.” Maybe we wouldn’t have ended up at a big agency. Maybe we would have ended up at a smaller agency. It might never have sold. But the fact of the matter is, when we had that opportunity, the script delivered and that was the start.
BSR: Did it sell fairly quickly once you went out with it?
DC: No. It didn’t. You’ll hear these stories about how something was a hot spec and every studio is bidding on it, but that wasn’t our situation at all. It went out to everybody and the way it usually works is your agent takes your script and he sends it out to various producers he has relationships with and the ones that like it come back and say, “We like College and we have a relationship at studio A… We’d like to bring the script into Paramount… or Sony, and that’s how it works. Generally scripts don’t go to studios. They usually go to producers first, who usually have deals or relationships and they bring it into the studio and say “Hey, this is a piece of material we’d like to do. Will you buy it for us?”
So we had multiple producers taking it out all over town. College took quite a while [to sell]. At the time there were a couple teen comedies floating around that we were competing with. A lot of studios had teen comedies that had been sitting around for a while that they were having trouble getting made, so why add another one?
BSR: Yeah, “We already have ours.”
DC: When American Pie hit there was a flood of teen scripts and it never stopped. So the studios were sitting on piles of teen comedies. They weren’t making them, but they had plenty of them so they didn’t need another one. And there were people that just didn’t like the script, for whatever reason. It’s a mixture of timing, finding the right producers and finding a studio that’s looking for a funny teen comedy.
BSR: A lot of stars have to align.
DC: And it didn’t for a while. What eventually happened was there was a producer named Rene Rigal who worked at a company called State Street, that did the Barbershop movies. He read College, thought it was funny… He actually called me and Adam and was one of the most passionate producers about it that we had talked to. The script had been dying down and we weren’t sure it was going to sell so, yeah, if there’s anyone that’s this excited about our work – that’s the kind of guy you want out there.
So Rene and State Street had a deal with Fox. They took it to Fox Atomic, who at the time was trying to do a Revenge of the Nerds remake, so they passed because it was the same thing. Then [State Street] took it to a company called Element that was independently financed. They did Waiting… they were working on Mr. Brooks at the time. And they liked it. They had money. Rene and State Street were the ones who got the ball rolling with Element and they essentially bought it.
And it’s not like they just buy it. They optioned it first, which is the normal process that happens. Now it’s “Can you get the script to where they want it?”
BSR: And it’s on you to bring it up to snuff.
DC: The general process is: agent takes script to producers. Producers take script to studios. They option the project. The reason they don’t buy it up front is, what if they don’t make the movie? The purchase price of a script can be very expensive. So generally studios don’t want to put out hundreds of thousands of dollars, or whatever it is – six figures generally – on something they may not make. What they generally do is put out a couple thousand dollars to option it, control the rights of the script for a certain period of time.
BSR: And you get paid when it goes into production.
DC: And you get paid when it goes into production. It’s not like people think when they read in the trades that something was just flat-out bought…
BSR: Yeah, Paramount just bought it and you walk in and they hand you your Ed McMahon-sized check…
DC: Yeah, [the perception is] they hand you a big check. [In reality] that’s not the case and it’s not smart business on the studio’s part. Why put up [a lot of] money when I could put up this much money, take the option and put the script in development? Now let’s see if we can get actors and a director. Now let’s get a start date. And they literally wait until that start date before you see any purchase price, because anything can happen before that.
There’s a lot of work involved when you get to that place and it’s one of the reasons you see writers making sacrifices, doing things in their script that they might not totally agree with because at the end of the day they want to get it made. At the end of the day, it’s a much larger payday.
BSR: The difference between five figures and six figures is kind of a motivating factor.
DC: Right, you want credit and you want to get paid. Now, there can be six figure options, so it can happen that you do hit the lottery on the option.
BSR: But not with two first-time screenwriters I imagine.
DC: In our case, that wasn’t it. There weren’t studios clamoring for the project. There were people circling but it wasn’t a case where people were so hot on the spec that people were just throwing money at us. We got a very small option and now it was a matter of us getting the project in a position where we could get a director. Because this movie wasn’t about cast.
Tomorrow: Dealing with notes and rewriting, and we’ll discuss casting and the comparisons to SUPERBAD.
Part III – Notes, Rewriting, Casting and SUPERBAD
Part IV – More Rewrites
Part V – Release and Reaction
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