DATE Re: “SCRIPT”
Dear Owner/Writer:
The following is a proposed draft of the agreement reached between Producer and Producer (hereinafter referred to as
“Producer”) and Owner/Writer (herein after referred to as “Owner”) with respect to the acquisition by Producer of an exclusive option (the “Option”) on motion picture, television, and allied rights in and to the screenplay written by Owner entitled “Work” (the “Work”).
1. Option: Owner hereby grants to Producer the Option for a period of six (6) months to commence upon the date of signature (“Initial Option Period”). In consideration of the grant of such Option, Producer shall pay to Owner the sum of One (1) Dollar, payable upon execution of this agreement, which payment shall be applicable against the purchase price hereafter set forth.
2. Setup Bonus (Second Option Period): If (but only if ) prior to the expiration thereof, Producer enters into a written agreement with a third-party financial entity for the development of a motion picture based on the Work, Producer shall pay to Owner the sum of _________ Dollars. Such payment, which shall not be applicable against the purchase price herein set forth, shall be deemed to extend automatically the Initial Option Period for a period of twelve (12) additional months, commencing upon the expiration of the Initial Option Period (the “Second Option Period”).
3. Purchase Price:
A. Fixed Compensation. If Producer elects to exercise the Option, it shall do so by written notice to Owner prior to the expiration of the applicable option period (it being understood, in any event, that commencement of principal photography of the initial version of the Work produced hereunder [the “Picture”] shall be deemed an exercise of the Option). Further, payment of the fixed purchase price, which shall be an amount equal to two and one-half percent (2 1/2 percent) of the final approved cash production budget of the Picture, excluding any overhead charged by a princi-pal financier, completion guaranty fees, deferred payments, finance costs, unspent portion of any contingency, and the fixed portion (i.e., not the contingent portion) of the purchase price, it being further understood that such purchase price shall in no event be less than _________ Dollars nor more than _________ Dollars, which payment shall be made upon commencement of principal photography. Producer agrees that if, at the time they exercise the Option, the final approved production budget of the Picture has not been determined, it shall pay to Owner upon such exercise the mini-mum amount of the fixed purchase price and shall pay any further amount due upon the determination of such final approved cash production budget.
B. Contingent Compensation - Profit Participation. An amount equal to five percent (5 percent) of one hun-dred percent (100 percent) of the net profits of the Picture if Owner receives sole “Screenplay by” credit in connection with such picture, reducible to two and one-half percent (2 1/2 percent) of the net profits of the Picture if Owner receives shared “Screenplay by” credit. For the purposes hereof, “net profits” shall be defined, computed, and payable in the same manner as for Producer.
4. Consulting Services of Owner. If, but only if, Producer actually produces the Picture, Producer agrees to engage Owner as a creative consultant. Owner shall be paid _________ Dollars per week during principal photography of the Picture, but in any event, Owner shall be paid no less than _________ Dollars nor more than _________. The Owner/Consultant’s transportation and accommodations to production locations shall be paid for by Producer.
5. Subsequent Versions:
A. Sequels and Remakes: Fifty percent (50 percent) of the purchase price, and profit participation set forth in paragraph 2 hereof with respect to each sequel; thirty-three and one-third percent (33 1/3 percent) of such purchase price, and profit participation with respect to each remake. It is further understood that in the event Owner receives sole
Figure 2–2 Option/purchase agreement 2
(continued )
“Screenplay by” credit with respect to the Picture, Owner shall be given the opportunity to write all such remakes or sequels (if any) upon terms to be negotiated in good faith between the parties, but in no event on terms less favorable to Owner than those set forth in this agreement.
B. Television Series: A royalty (the “Applicable Royalty”) of Two Thousand Five Hundred Dollars ($2,500.00) with respect to each new 30-minute episode produced, and Three Thousand Dollars ($3,000.00) with respect to each new one-hour episode produced. With respect to spin-offs, one-half (1/2) the applicable royalty; with respect to generic spin-offs, one-third (1/3) the applicable royalty. With respect to each of the first five domestic reruns of any such episode, Producer shall pay to Owner twenty (20 percent) percent of the initial royalty paid.
C. MOW/Miniseries: $25,000 per hour pro rata.
6. Credit: Although this agreement is not subject to WGA jurisdiction, WGA credit determination standards shall be used in determining the writing credit to be afforded to Owner in connection with the Picture, and Owner shall be afforded such credit wherever the WGA requires such credit to be given. Anything herein to the contrary notwithstand-ing, in the event the WGA is willing to conduct a credit determination with respect to the Picture, the parties agree to submit to same.
7. Further Revision of Work: In the event Producer requires any further revision or polish of the Work after delivery of the Work. Owner shall be guaranteed the right to write the revisions or polish thereof that Producer requires (provided Owner is available to do so in accordance with Producer’s reasonable time requirements), for a fee to be negotiated in good faith between the parties. In the event Producer sets up the Picture with a third party (i.e., studio or independent film company), Owner/Writer shall be granted the right to write any revisions or polishes thereof agreed upon by all parties.
8. Rights Granted and Reserved: The option and purchase agreement is for the exclusive, perpetual, and worldwide theatrical motion picture, television, allied, and subsidiary rights in and to the Work, and all elements thereof, including theatrical motion picture, television (whether filmed, taped, or otherwise recorded, and including series rights), cassette and other compact devices, sequel, remake, and advertising rights (including 7,500-word excerpts and synopses publica-tion rights); all rights to exploit, distribute, and exhibit any mopublica-tion picture or other producpublica-tion produced hereunder, in all media whether now known or hereafter devised; merchandising, soundtrack, music publication, and exploitation rights; the right to use Owner’s name on or in connection with the exploitation of the rights granted hereunder; and all other rights customarily contained in connection with option and literary purchase agreements, which shall be binding upon and inure to the benefit of the parties hereto and their successors, representatives, assigns, and licensees. Owner reserves all publishing rights in the Work (but same shall not prevent Producer from authorizing publication of
“the making of ”-type books); all interactive game rights therein; and all live stage rights therein (subject to a 7/10 year holdback).
9. Representations and Warranties: Owner represents and warrants that Owner has the right to enter into this agree-ment and grant the rights herein granted; that the Work is original with Owner and that to the best of Owner’s knowl-edge no part thereof will infringe upon the property rights, rights of privacy, or any other rights of any parties, nor does any part of the Work constitute a libel, slander, or defamation of any party. Owner makes no representations or war-ranties with respect to any material that may be included in any version of the Work produced hereunder by Producer that was not contained in the Work, and Producer agrees to indemnify and hold harmless Owner from and against any damages (including reasonable attorney’s fees) sustained by Owner as a result of any such material included in such ver-sion that was not contained in the Work or resulting from the production, distribution, and exploitation of any verver-sion of the Work produced hereunder.
10. Payments to Owner. All sums due to Owner hereunder shall be made by checks payable to Owner at________.
11. More Formal Agreements: The parties will enter into more formal agreements, if any (which may be negotiated in good faith between the parties), as may be necessary to more fully effectuate the purposes and intents of the foregoing, incorporating all the terms herein, together with such additional provisions as are customary in the entertainment indus-try in agreements of this nature, including but not limited to ownership of the Picture, force majeure, editing rights
Figure 2–2 Option/purchase agreement 2 (continued)
option/purchase agreement with another party, you cannot pitch your script to other people or companies during the term of the agreement.
The cost of the option is different from the purchase price. Usually, a much smaller sum is paid for the option itself. Depending on the circumstances, the option price can be any mutually agreed-upon sum, from $1 on up.
Figure 2–1 shows a deal we made with a writer who wanted to direct and star in the film. We agreed as produ-cers to do everything in our power to effectuate that, but we also felt it was important to have some flexibility in the event we could not garner the necessary financing with a first-time director who was also an unknown actor. There-fore, we created three possible scenarios (sections 3B, C, and D in the agreement). We also agreed to give the writer the right to execute any and all script changes and a setup bonus. None of these things is necessarily standard. How-ever, the agreement worked for the situation, time, place, and people involved.
In Figure 2–2, the option period is for only six months. The writer wanted to remain involved in the proj-ect, and we satisfied that request by granting him a paid consultant position on the film in the event the picture
went into production (paragraph 4). We also gave him the right to all rewrites if the film were to be produced (para-graph 7) and the right to first negotiation as the writer on any sequel or remake (paragraph 5A).
Each situation is unique, and part of the negotiation process is determining what makes sense for the project and the parties involved. You want to be generous, but you also want to be savvy. Be careful that none of the points you are agreeing to will make the project unat-tractive to potential investors or talent. For example, you do not want to give up 75 percent of net profit or an executive producer credit and not have those cards to play when you need them down the line (for other tal-ent, investors, or others). The option/purchase agree-ment will probably be the first in a long line of deals and agreements you will need to make. Do not give up too much of the pie at this early stage. As you will see from the sample agreements included here, we have strayed from the norm when and where it worked for the parties involved.
Appendix A: Resource Guide at the back of this book lists guidebooks to legal issues and contracts in the entertainment industry. We recommend you work with The Script ● 9
(inclusion of commercial inserts and logos), and waiver of equitable relief (all of which such additional provisions are deemed incorporated herein). Until the execution of such more formal agreements, however, this document shall be deemed binding upon the parties hereto.
AGREED TO AND ACCEPTED:
Producer:
Producer/Producer
By: __________________________
Its
__________________________
Its Owner:
Owner/Writer
______________________________
Owner/Writer
SS# __________________________
Figure 2–2 Option/purchase agreement 2 (continued)
a reputable lawyer, but if you cannot make that arrange-ment it is possible to navigate through this on your own.
Be thorough. Read as much as you can. Many standard legal contracts exist that protect all parties involved. It is advisable to let the system work for you and have the proper paperwork in place.
REGISTRATION WITH THE WRITERS GUILD OF AMERICA
Registering your script with the Writers Guild of America (WGA) serves as a record of the script’s completion date and protects your original work and ideas. It is an easy process that can now be done online, in person, or by mail. We cannot stress enough the importance of taking these easy steps. It will protect your idea or your script and it is the professional thing to do. It is so easy, there is no excuse not to do it. Registration of your script (treatment, synopsis, outlines, and written ideas) with the WGA through The Writers Guild’s Registration Service (or Intel-lectual Property Registry) is available to members and non-members of the Guild.
Submission Requirements for WGA Registration
The following are the requirements for submission of a script to the WGA for intellectual property registration.
• An unbound copy of the script
• A cover sheet with the title and the writer’s full legal name
• The writer’s Social Security number, return address, and telephone number (if there is more than one writer, you must choose one)
• A check for (currently) $20 for nonmembers or $10 for members
When you receive your registration number, enter it on the front page of your script. The term of registration is five years, which can be renewed. Only the registrant has access to the registration information, and will need to present a photo ID for access or renewal. On the West Coast, the WGA is located at:
WGA, West, Intellectual Property Registry 7000 W. Third St.
Los Angeles, CA 90048
Phone: 323/782-4500; fax: 323/782-4803
On the East Coast, the WGA is located at:
WGA, East, Intellectual Property Registry 555 W. 57th St.
New York, NY 10019
Phone: 212/767-7800; fax: 212/582-1909 Online Registration
The Writers Guild of America West Intellectual Property Online Registry is found at the following address:
https://www.writersguild.org/webrss/dataentry.asp The following are procedures to be followed for WGA online registration:
• Fill in material details and registrant/author(s) information and other required fields. (Authors cannot be added to an existing registration once it is
submitted.)
• Browse and select the file to be submitted. (File names must be limited to 35 characters or less for uploading.) When submitting online, the preferred file formats are ASCII, PDF (Adobe Acrobat), Word, Final Draft, and Movie Magic Screenwriter 2000. You will be prompted to select the file on your hard drive that you wish to register.
Note that only one file for each online registration request will be accepted. Currently the file size limit is 10 MB.
• Submit your registration request.
It is important to note that online registrations are effec-tive immediately and cannot be changed in any way once submitted. Online processing prices are the same as mail and in-person submissions. Once submitted, you will receive a registration certificate in the mail several weeks later.
COPYRIGHT
Registration with the WGA does not take the place of copyright. Copyright protects “original works of author-ship,” and the copyright claimant can be the author or the owner of exclusive rights to the work. Registering your script with the U.S. Copyright Office in Washington, D.C. is easy and the forms can now be printed from their Web site (www.loc.gov/copyright/). Again, this is an easy step to take and a worthwhile one. Hopefully, you will never run into the problems that can arise when and if
someone steals your idea, but copyright and WGA regis-tration really do protect you. Furthermore, chain of title, should you ever sell the property, will require copyright registration, so you might as well get it over with. Submis-sion requirements are as follows:
• A completed and signed Form PA (See Figures 2–3 and 2–4.)
• A check for $30 payable to the Register of Copyrights
• One copy of the script
These three items should be submitted in one envelope to:
The Library of Congress Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559–6000
Registration is effective the day the Copyright Office receives your submission, but you may not receive paper-work for up to 16 weeks. When you make a production deal, secure financing from a bank, or deliver your film to a distribution company, evidence of the chain of title will be required. At a minimum, you will have to provide a certifi-cate of copyright, the option/purchase agreement, and the writer’s agreement if there is one. (See Appendix A: Resource Guide for sources of assistance with copyright law.)
The Script ● 11
The Script ● 13
Getting your picture financed is not easy, and the process may cause you to reconsider many aspects of making a movie. We have found the financing process to be frustrat-ing and difficult, but we also believe the process itself is as important as the product and that there is much to be learned from it. The time you spend securing financing for your film can be one of the most trying and overwhelming periods of the filmmaking process. It is important to remain open to various options and to not cling to a spe-cific idea of how you want to get your film made.
DANCING WITH A DOUBLE-EDGED SWORD
Financing is a catch-22. You cannot secure financing without having talent attached, and you cannot get commitments from talent unless you have financing. Ideally, you pursue both simultaneously and hope that you will find either the financier who loves the project and wants to be involved or the actor who loves the piece and is willing to grant you per-mission to use his or her name to help finance the piece.
On Swingers, we had a difficult time for this very rea-son. We knew the cast we wanted, but unfortunately few people knew of Vince Vaughn, Jon Favreau, Ron Liv-ingston, Patrick Van Horn, or Alex Desert at the time. In meeting after meeting, executives suggested the movie might be viable if the role of Trent could be cast with a bankable star. We stuck to our guns, but none of those production companies ultimately wanted to finance the picture. The good news is that everyone is looking for a good role and a viable project, so it is feasible—if you are
prepared and persistent and if your material is good—that you will find financing for your film.
The Kissing Jessica Stein story was almost identical to Swingers. Everyone who read the script loved it, and we had companies indicate interest in purchasing the script outright with the idea of producing it with stars. This was not an option, in that Juergensen and Westfeldt had writ-ten the project as a vehicle for themselves. Our original budget was over $2 million, and we ended up completing a rough cut for $720,000 and finishing an answer print for
$950,000. The delivery expense, including music licenses, brought the total budget to $1.1 million.
THE PITCH
At every stage of making your film, people will ask you what your movie is about. You may find yourself pitching your film to your best friend or to a banker, so you want to be able to give a compelling thumbnail sketch of your film. The pitch is a boiled-down description of what your film is about.
At every stage of making your film, people will ask you what your movie is about. You may find yourself pitching your film to your best friend or to a banker, so you want to be able to give a compelling thumbnail sketch of your film. The pitch is a boiled-down description of what your film is about.