Breakfast with Sharks Page 9

Infighting clouds perspective. More important, it wastes time. As sacred keeper of the story’s spine, it is the screenwriter’s job to rise above the situation. If you do get bucked from the horse—and sometimes you will, despite all your efforts—live to fight another day. Stick to making your script the juiciest steak it can be—that is your only real goal.

  Pitch Story

  “I’m loaded for bear but I’m also really nervous. I don’t know which of my ideas to go with first because I don’t know what they want.” The writer was just an hour away from his pitch meeting with one of the top comedy actors in the business when he called me. The actor’s team had already heard the pitch but a deal wouldn’t happen unless the writer could find a way to tailor the project for this star. “It’s counter intuitive, but, at least initially, I think you’re there to listen,” I said. “Get a sense of what they already liked about the pitch and what kind of movie the star wants to make before you say anything from your side.” The writer called back a few hours later, ecstatic. The strategy had worked and he had sold his project for six figures. “Man, if I’d just charged in there, I would have blown the deal,” the screenwriter told me.

  Listening. It works.

  TYPICAL RESPONSES YOU WILL RECEIVE FROM THE STUDIO

  You can meet hundreds of different execs or producers on dozens of projects over the course of your career, but 99.9 percent of their responses can be logged into the following convenient categories. Note that it helps to know what the answer you’re receiving means in real time, rather than wait for a Navajo code talker to become available days later.

  A Firm Yes or a Firm No. “We’re prepared to make a preemptive offer [an offer ahead of the script being taken out into the market for competing bids] today.” Or “We would never make a movie from a script this terrible!” Both responses are rare. You must be seated before a true green-lighter for the “yes,” or before someone who prides himself on his bluntness for the “no.” Since nobody really knows who may come up with a million-dollar idea tomorrow, or, worse, who is mentally unbalanced, even moguls shy away from the blunt negative answer. Meanwhile, executives who are too enthusiastic about going to bat for a particular project can get fired.

  Action for a Firm Yes: Don’t get hung up on dollar amounts. Instruct your agent and lawyer to nail down contract terms as quickly as possible, while continuing to apply pressure by requesting status information and details on the negotiations. Many deals have died in business-affairs limbo simply because regimes changed and a contract wasn’t signed. A deal isn’t a certainty until the contracts are signed and the check has cleared.

  Remember—this is your deal. While an agent may be most concerned with dollar amounts, it is you who will have to live with the contract you sign. Tickets to the premiere, participation during production, including on-set rights or at least visitation, a guaranteed number of copies of your movies on video and DVD, right of consultation concerning creative issues—if any of these issues are important to you, now is the time to get them locked down in a contract. The industry is replete with stories of writers locked out of the Hollywood premieres of their own movies. A friend of mine who wrote one of the top blockbusters of 2002 found himself purchasing the DVD at an electronics store simply because he hadn’t stipulated anything in the contract. Arguably, he could have called his management to pursue the matter, but is that really the best use for high-powered management?

  Action for a Firm No: Move on. Quickly. Be glad that you can move on without waiting. If there’s a reason given for the pass, see if you can use the information to improve your project, but don’t dwell on the result.

  The Firm Maybe. “I love this so much I’m gonna run it by Stan [VP, head of production] this afternoon!” The exec is genuinely excited, but must get the rest of his team on board. You can build something tangible from this. Establishing a timetable for progress is a good place to start, as is receiving substantive notes to address issues and strengthen the project while waiting for the rest of the studio to get on board. Many writers refuse to act on such notes. They feel that they’re close to their goal, so doing “free work” signifies weakness or desperation on their part. Such an attitude is a huge mistake. For starters, a lot of Hollywood is playing the “hurry and wait—now GO!” game. True desperation comes from a writer who has been idle for a couple of weeks waiting on a response, which comes back, “Congrats. You got the gig. You can make the changes we discussed as well as new ones by the end of next week?” Even when the Firm Maybe fades away to a Soft No, and many will, a writer who has received and executed notes (aka “free development”) is in a strong position to submit the strengthened material to a competitor.

  Action Plan: Your agent should be your listening post while waiting for the decision. Check in with your agent often via phone and e-mail; they should in turn be talking regularly with the producer and/or executive.

  The Soft Yes. This is “I love it. Now, we don’t have a discretionary fund [money a studio-based prodco has in reserve to buy or option projects without studio approval], but do these changes and come back in four months and let’s talk.”

  Action Plan: Do the changes if you agree with them, knowing that maybe you’ll be back in four months and maybe you won’t. Your chances of doing business together will be stronger if the production company has a proven track record of getting movies made.

  The Soft No and the Soft Maybe. “This project isn’t 100 percent right for us right now. But things could change and I’d like to stay in touch and possibly revisit this discussion at a later date.” Or “This is a very intelligent script. You certainly got it down on the page. I would love to make a prestige film like this.” Both responses are a “no,” but sound like “Wahoo! Maybe!” Both are designed to get you out of the room without bruising your ego or elevating your blood pressure. Depending on the skill of the user and the circumstances, the answer is time-released and recognition ranges from the elevator lobby directly following the meeting to two weeks later, when your calls are no longer being acknowledged.

  Action Plan: Congratulate yourself on getting in the door, even if for a pass. Send a thank-you note in appreciation of the decisionmaker’s time. Express how much you value his or her expert opinions, along with your wish that, in the future, you hope to work together. Your objective is to make a good impression by showing your willingness to handle rejection and to work on improving your writing even as you cultivate this new relationship. To this end, add the decision-maker to your contact list, tracking their progress in the trades and sending congrats whenever something noteworthy occurs.

  You and your craft are always works in progress. Thus every interaction—even the most cryptic ones—are steppingstones to building the kind of career you want. To that end, always try to project the following qualities in every meeting. You are:

  smart

  fun

  enthusiastic

  easy to work with

  dedicated to improving your craft

  WHY SOME DEADLINES CAN BE APPARITIONS

  Working writers soon discover that timeliness and proper storytelling are often at odds. That’s because deadlines are crucial to transforming a script to the screen; however, for the writer, it’s more imperative to get the script locked down with compelling and logical story lines and fleshed-out characters who have arcs (show personal growth as a result of their experiences). Most of us writers need the discipline of deadlines. But often you will rush to meet an arbitrary deadline like the weekend read to finish a draft that sometimes no one will read for weeks. The solution is to write every day, but always keep in mind that you survive by learning to pace yourself. Failure to heed this truth can lead to no life outside of the business; the cumulative effect is death of a thousand cuts to your career via loss of perspective and resulting disillusionment.

  Good Writer . . .

  has no problem with rewrites

  is available for last-minute punch-up work on the set

  makes his o
r her deadlines without fanfare

  Bad Writer . . .

  has a cynical attitude

  is “unavailable” when the studio needs a rewrite in a hurry, but suddenly becomes “available” when the studio offers a substantial amount of cash; earns the enmity of the exec and director

  misses deadlines and has his or her agent deal with the resulting situation

  The start of the spec season in September signals renewed hope and vigor for the development season ahead. But we all know that this is a tough town with a tough agenda, analogous to turning an aircraft carrier in the middle of the ocean, as a seasoned director once said. In the face of such difficulty, the best of us see ourselves as students of the process. We always remember that the incubation process for ideas into film can be long, and isn’t one that any of us has any control over. All we can do is put pen to paper, fingers to keyboard. While thinking we have control over Hollywood is illusory, we can stay alert to potential patterns and the objectives of others. Then our job is to correctly read and make the most of the opportunities with which we are presented.

  7

  SECTION 245: CONTRACTS

  How to Register with the WGA to Protect Your Work

  What Is the Minimum Basic Agreement?

  Understanding the Spec Sale Contract

  Types of Contracts

  Purchase Contract for a Spec Script

  Option Agreement for a Spec Script

  Deal Memo for a Writing Assignment

  Oral Contract

  EXTRA CREDIT READING:

  Clause by Clause by Stephen Breimer

  Dealmaking in the Film and Television Industry by Mark Litwak

  The Writer Got Screwed (But Didn’t Have To) by

  Brooke Wharton

  A verbal contract isn’t worth the paper it’s written on.

  —SAMUEL GOLDWYN

  Screenwriters delight in spinning words into unforgettable images. Telling stories is our particular passion. And passion is what agents, producers, and executives look for in writers. It is a powerful ally in choosing the kind of projects you want to do, and the kind of career you want to have. Passion is the manna of inspiration from heaven—a currency passed from writer to producer to executive, then to director and actor, down the line to the promotions department and, ultimately, to the viewing audience. And therein lies the rub. As we have discussed, film is a convergence of art, industry, and entertainment like no other creative medium. As a result, our work occurs in the context of business and law. So, whether option or outright spec script sale, pitch or assignment, we screenwriters must temper our enthusiasm to create, unfettered by market realities, with a thorough understanding of the sometimes arduous dealmaking process leading to the development of our projects.

  Many writers steer clear of the legal aspects of their work. At first glance, the reason is apparent: Most contracts are written in the passive voice and filled with inscrutable jargon. It’s like looking for online porn and stumbling upon a Klingon chat group. But do enough contracts and you begin to cut through the clutter, and the legal aspect of writing becomes not only tolerable but downright interesting, as all things do that are the province of writers.

  HOW TO REGISTER WITH THE WGA TO PROTECT YOUR WORK

  Taking care of bid-ness starts with registering your work with the Writers Guild of America at www.wga.net. Serving both members and nonmembers, the Guild helps writers protect their rights to their material against plagiarism or copyright infringement. Writers can file concepts, treatments, and scripts intended for film and television—anything short of pop-up books—prior to circulating them to others in the industry. For a modest fee, the Guild will secure the material for a period of five years and testify on the writer’s behalf to the possession of the material on the date of the registration, which is legally effective in helping to assert a writer’s rights in literary material. Note that when you write an original script, you own the copyright by virtue of having created the script. So deals are not about bringing rain to your parched bank account so much as about the transference of your copyright ownership to a production company. Thus, when an original script is sold, the writer usually transfers the copyright as part of the sale. Conversely, when you are hired to write a script under an employment contract, you are creating a work for hire, which, under U.S. copyright law, vests the initial copyright with the employer. This is true whether the script is original or is based upon material assigned by the employer. Ownership of the script copyright, whether by acquisition or under the work-for-hire doctrine, is the practical means by which the companies preserve their rights to exploit the scripts they pay for.

  In practical terms, ownership means that writers can restrict prospective producing entities (i.e., producers) from shopping the material to third parties (i.e., studios, bigger producers, directors). Many writers are so eager to land a deal that they allow would-be producers to send scripts to whomever they wish. However, when a producer fails to land third-party involvement, the script is effectively dead around town, taking a year of the writer’s life down with it. Such writers are truly living on the career edge, and are sure to be that “bitter guy” at parties and family functions. Landing a deal is hard enough without also going swimming with rocks in your pockets. You should always restrict the circulation of your work to a list of mutually agreed-upon parties. A track record of active development deals, distribution deals, or production or financing deals should be the main criteria for your agreeing to allow your work to be sent out.

  WHAT IS THE MINIMUM BASIC AGREEMENT?

  All deals in Hollywood stand on the meaty shoulders of the Writers Guild Minimum Basic Agreement (MBA), which stipulates a foundation of creative protections and financial incentives for your intellectual property. It helps to think of the MBA as a kind of writers’ minimum wage and working conditions arrangement with producers and studios. It is broken down into the major categories of Fees, Arbitration Procedures, and Residuals. Before commencing to negotiate your own personal contract, you should familiarize yourself with the MBA, available on the WGA website at www.wga.org, endeavoring to go beyond it to negotiate even better individual provisions. The right to stick around during production and postproduction, and the right to share (meaningfully) in ancillary and sequel profit participation are up for grabs. Since the MBA offers a wide umbrella of various payment minimums and contractual protections for your resulting work, rarely is it in your best interest to undercut the MBA. If you do, via non-Guild work, you should go in with your eyes open, since such contracts will always be weighted in favor of the producer, with few protections for the writer. Worse, the WGA will be unwilling to mediate such a contract in the case of a dispute.

  UNDERSTANDING THE SPEC-SALE CONTRACT

  In Hollywood, nothing is covered in more hype and glory than the spec sale. Writers relish the concept of a Cinderella scribe toiling away in obscurity—believing in himself or herself enough to write many hours for free, long before there’s even the thought of a buyer—and winning the lottery. It happens. However, the reality falls somewhat short of that ideal, since humongous, seven-figure spec sales are but a tiny, tiny portion of the actual deals made each week. What follows here is an overview of four types of deals that writers typically encounter. In discussing merits and shortcomings of the resulting contracts, and ways a writer must give “the process” its due, let me state at the outset that I am not a lawyer. Many film schools offer excellent curriculum and adult education courses in entertainment law that are well worth your time. In addition, Stephen Breimer’s Clause by Clause, Mark Litwak’s Dealmaking in the Film and Television Industry, and The Writer Got Screwed (But Didn’t Have To) by Brooke Wharton are all palatable, must-read legal guides for any writer serious about his or her craft. Read any of these books and you will be ready to discuss the salient points of what you want from your prospective deal. For myself, I always look for a guarantee of first opportunity for rewrite, polish, and corresponding fees after the
initial purchase terms. That includes assignment contracts, and the issue is often a deal-breaker for me. Logically, I want to hold on to the project as long as possible to make my mark.

  1. Purchase contract for a spec script. A studio or production company purchases all rights to your script outright for a negotiated price, along with additional monies if the project is actually produced (remember that only one in twelve actually is). The terms of such a contract are too complicated for the purposes of this section, but the bottom line is this: if a spec sale happens to you, forget Cousin Vinny and get to a Hollywood firm specializing in entertainment law ASAP.

  Like the compression of synthetic coal into the diamondoids sold on the Home Shopping Network, major spec sales occur when there is intense “heat” coming from inside the industry, in the form of trackers whose job it is to keep tabs on new and interesting projects coming to market. As stated, such specs are but a fraction of the actual business of Hollywood. It’s important to keep in mind that only certain producers involve themselves in this high-stakes market. Many others forgo the market entirely, preferring to adapt best-selling books to film, or meeting with established writers for sit-downs to flesh out interesting concepts.

  2. Option agreement for a spec script. Given that a single producer may be developing as many as fifty scripts at one time, a production company will rarely purchase a script outright since it would go broke very quickly. Instead, for a contractually specified time period, producers will rent or option the right to develop the project and attract interest from a studio, a notable director, movie star, or all of the above. When the contract period ends, the producer may seek to extend the option with additional payments to the writer. If no extension is offered, then the producer is essentially abandoning his or her involvement in the project, in which case, all rights revert back to the writer, who has the right to shop or look for a new producer.