Writing for the Green Light

by Scott Kirkpatrick

  10. “Additional Deliverables”: If any clause in an Option/Purchase agreement could ever come back to require Jessica to perform more work, it would be this one… . “Additional Deliverables” are essentially all the add-on requirements that the Purchasing Production Company might require if the “Option is Exercised,” transitioning this Agreement from an Option to a Purchase. There is generally no locked time on this (meaning, at any point, Purchasing Production Company could make a request for an Additional Deliverable). Generally, these deliverables are clearly identified, or at least “limited” in scope. They could range from requests to see Jessica’s WGA registrations or Copyright notices to seeing Jessica’s “work in progress” drafts to either (1) verify that she organically created the script, but more often than not it’s to (2) see if they can harvest any material she might have deleted from earlier versions. The “limitation of scope” would be to prevent any “Additional Deliverable” being anything along the lines of a rewrite or polish of the script.

  11. “Screen Credit”: They’ll list here “as long as Writer is not in Material Breach” that they’ll give Jessica a Written By credit for her work in the main credits, and that the on-screen credit is equivalent to the font and text size on screen as everyone else. Generally there will be a note dictating that this Writer’s deal is NON-UNION and that it is not bound to the rules of the Writers Guild of America, BUT that it will follow the general principles of the WGA in determining writing credits, etc.

  12. “Creative Control Clause”: The dream scenario here would be the Jessica (as a skilled and talented artist) could fight to see her vision of how “SELLABLE FEATURE-LENGTH SCRIPT” should be seen on screen once all is said and done. On a few occasions, writers might be given permission to approve the edits, trims, and revisions a Purchasing party is choosing to move forward with regarding their script, but certainly not always. And rarely would a writer, with the exception of a mega name, like a well-known author, get to be a part of the process of choosing directing or acting talent for the project.

  13. “Irrevocability” or “Non-Equitable Relief”: Lawyers have this funny way of drafting contracts to be overly clear without being redundant… . Except when it comes to hammering over one’s head the fact that after this Agreement is signed, it’s permanent and that all pertinent rights have forever been handed over from one party to the other. And the “Irrevocability” or “Non-Equitable Relief” Clause essentially reflects such an occurrence… . Here, they are simply reiterating that once the Owner signs this Agreement, the Purchaser has all the rights to the script into Perpetuity. There will certainly be other wonky nuances spread throughout this paragraph, but the gist is to understand you’ve handed over your property once and for all.

  14. “Insurances”: There’s always an Insurance policy protecting someone along the line… . But here, it’ll be the Purchasing party with the policy. This clause essentially grants Purchasing Production Company to include both Jessica Screenwriter and Jessica’s script on their General Liability coverage and/or Errors and Omissions insurances. This way, if any claim were to be brought against the Company, they have a policy to payout the damages caused either by Jessica’s negligence (or the plagiarism/theft/non-cleared matters of her script). This is just a standard language block; no one is accusing Jessica of wrongdoing, it’s just clearly stating a plan of action to protect the Purchasing Party.

  15. “Assignment”: Assignment refers to the act of “assigning” a property’s rights from one party to another… . This very Agreement is assigning the rights of Jessica’s script to Purchasing Production Company. But could Jessica sell this Agreement to someone else or transfer the responsibilities to another entity? No… . However, the Purchaser can. In fact, that’s the very nature of a distribution agreement or option agreement; Jessica is signing the rights of her script to Purchasing Production Company, specifically allowing them the right to shop her script—or possibly even sell it—to third parties if necessary, all in an attempt to get her script Produced into a motion picture. Generally, at least in entertainment contacts, whoever the initial ownership source is who’s signing their content over to a third party, is rarely allowed to assign their agreement responsibilities to another party… . However, the party who is inheriting your rights generally can.

  16. “Re-Acquisition of Rights”: If the Option in this Agreement is exercised and Jessica’s script is officially Purchased by Purchasing Production Company, but after an extended period of time (usually well over ten years), no motion picture ever moves into Production based upon her script, she might have the ability to “re-acquire” the rights to her script. Do understand that the Purchasing party has (in the eyes of the law) fully Purchased all rights to Jessica’s script, so it would not be a simple “hand-over” of the rights back to her… . She would have to buy them back. How much? Who knows. In ten (or more) years, Purchasing Production Company might be in financial trouble and simply want to take in any excess cash they can, or maybe Jessica has become a hot-shot Oscar winning writing talent and her new manager wants to buy them back on her behalf to prevent a flunky film crew from taking one of her old scripts and tarnishing her reputation (which they’ll see as an opportunity to play hard ball). Nevertheless, in most “Option/Purchase Agreements” there will be a clause addressing this issue.

  17. “Passive Payments”: When referencing money, the word “passive” refers to income that is generated without doing any direct work with which to earn it… . Think about an investor buying a company’s stock, when the stock increases in value, the investor is earning money without having to do any real effort (which is why earnings on a stock are classified as a form of “passive income”). For Jessica, as a screenwriter, passive payments would refer to any prequels or sequels (theatrical or straight-to-home entertainment) derived or associated with her intellectual property (her script). If a deal is struck with a third party and this contract is assigned to them, they might be able to move forward with prequels, sequels, or remakes. If such a work is ever produced, Jessica will receive a small bonus (generally equivalent to 50 percent or less of the Purchasing Price or Commission payment plan to the new writer). However, when your feet are kicked back and passive income arrives, who’s really complaining? Passive income for Jessica would not constitute royalties or commissions directly related to “SELLABLE FEATURE-LENGTH SCRIPT” in that she did the actual work that generated those earnings.

  18. “Miscellaneous”: Yep, everything else they can squeeze in. Let’s highlight a few simple terms, but go ahead and assume they’ve thought of every contingency here:

  (a) Condition Precedent: This is a phrase used to essentially state that all the terms in this agreement are contingent upon the following elements (it’s used to protect the buying party—or in this case, the Purchaser):

  (i) Execution of the Agreement: Both parties must sign the Agreement… . Seems straightforward, but you’d be surprised how many times one party signs an Agreement, then sends it out for countersignature but never receives the other party’s John Hancock. Until you have both parties’ signatures affixed (next to one another), you don’t have a deal.

  (ii) Chain of Title: The Chain of Title is a series of legal documents that trace “ownership” and “right” back to a single source. For Jessica, as a newbie writer, she would have a copyright, a WGA registration form, and might have to present a written statement that she (and only she) produced the script (based upon an original idea derived from her own imagination), and that if any other party claims the work it is by pure coincidence… . Again, this is all to protect the party with the money (Purchaser) so that they can guarantee they’re investing their money into something that no other entity might actually own (or litigate against) later on.

  (b) Entire Agreement: Just because one sentence on page three could mean one thing, but another sentence on page four means the opposite, an arbitrator or lawyer will only be reading both sentences in context within the “entire Agreemen
t,” or how they related to the whole Agreement.

  (c) Notices: All notices, statements, announcements, or any other form of correspondence must be in writing for it to be properly considered “received” in the legal world… . Therefore, here each party will be clearly required and responsible to keep the other party aware of any updates to their contact information. For instance, if Jessica moves apartments, she must inform Purchasing Production Company, and if Purchasing Production Company changes offices, they must notify not just Jessica, but all clients they’re in business with. Although it’s now assumed, there is usually a statement explaining that email notices are perfectly valid. (It’s also important to keep the other party aware of any changes in address so that there’s no hold-up with future payments either.)

  (d) Arbitration: Things don’t always go according to plan, and even the very best Agreements (that seemingly cover every conceivable issue) can occasionally be too vague or allow “open to interpretation” language. Rather than each party “lawyering up” and heading into a courtroom—which is extremely expensive across all fronts—they can simply arbitrate. In such instances, both parties would schedule an arbitration hearing, overseen by a single arbitrator, under the rules and regulations of the American Arbitration Association. Generally, it’s stated that there will be only one hearing and that the determination of the Arbitrator (whichever side they deem to be “correct”) will be final in the eyes of the law and on behalf of both parties.

  (e) Governing Law: There will always be a listed location whereby the laws of this Agreement will be filtered through in the event of a dispute. Generally, these will be the State and City of the Purchasing party: “in accordance of the laws of the State of California, city of Los Angeles.”

  (f) Relationship of the Parties: In these Agreements, there will usually be a clause explaining that both parties are not forming any type of legal partnership. They are engaging in business on this particular occasion (with signatures affixed), but that does not in any way constitute nor guarantee continued business down the line. (In short, just because Jessica keeps writing scripts doesn’t mean Purchasing Production Company will continue [or be obligated] to buy them). This protects both parties.

  (g) Publicity/Press Release(s): People like attention… . And in today’s media-heavy world, just about any time anyone sneezes, they want to issue a press release or a public statement. In this case, it’s a positive thing: “Purchasing Production Company Inks Deal with Newbie Jessica Screenwriter.” Same for Jessica—she might have a following for previous works she’s done (or she might turn into a well-known name in the future). Or, perhaps the movie is a runaway success. In any possible scenario, and for any possible reason, if either party wishes to mention this Agreement, the relationship, or the script, they must clear it with the other party. Nothing too formal, you just send over a copy of the announcement to the other party and allow them to proofread it and make any necessary changes.

  (h) Confidentiality: Consider all the detailed terms in any Agreement like this completely confidential. Just like any job you take on, you shouldn’t go around boasting how much you earned or how the financial structures are orchestrated. This clause is here to protect both parties. Maybe Purchasing Production Company is offering Jessica much more than they normally would for an “Option/Purchase Agreement.” If so, they don’t want that information leaked and have to deal with previous clients coming back to complain. Same with Jessica, maybe she’ll take less money here and know she can hold out for more cash on a later deal with another company, after she’s built a track record; meaning, if the financial terms of this deal were disclosed to other parties behind her back, she would lose some leverage. When in doubt, trust the classic saying: “Loose lips sink ships.” Keep your mouth shut.

  (i) Force Majeure: A French phrase found in all contracts describing things that are out of our control, like a flood, war, political protest, or any other unforeseen and unstoppable event.

  (j) Severability: Jessica won’t be able to escape this deal since there is no formal Exit Clause after a “Purchase.” However, if a dispute were to ever lead to a formal Arbitration hearing and within that hearing the Arbitrator deemed any single portion of this Agreement to be “illegal” or otherwise “unenforceable,” then that determination (due to the “Entire Agreement” clause above) would mean that the entire Agreement would be seen as illegal and unenforceable—which would essentially make this Agreement moot and worthless. This is rare, but nevertheless you’ll see the language.

  19. “Agency”: If Jessica has an agency representing her, this is where they’ll wedge in their information so that it’s clear any possible dollar (whether from Option Payments, Purchase Price, or even future Passive Payments, via Purchasing Production Company or any future entity it Assigns the rights of this deal over to), this agency will be entitled to its pre-negotiated cut. Jessica certainly doesn’t need an agent to negotiate this Agreement. Even if she’s unsure of how to approach it on her own, she can hire a lawyer for a one-time fee and have a professional handle the bulk of it … and if she chooses that route, the lawyer won’t wedge in an ongoing cut. Nevertheless, there will usually be a statement addressing the agent or any third party representing Jessica’s talents and Ownership. Also, if Jessica were to have entered this deal while under agency representation and later dissolved that relationship (even the day after this Agreement’s signature date), her agent would still have his or her 10 percent claim on all future earnings.

  And then both parties sign… .

  AGREED AND ACCEPTED: PURCHASING PRODUCTION

  OWNERCOMPANY, LLC

  ________________________By: ______________________

  Name: Jessica ScreenwriterIts:

  SSN: 123-45-6789

  (Occasionally, this Agreement will be accompanied by what’s referred to as a “Short Form Assignment” or “Instrument of Transfer.” This is essentially a one-page document (that’s notarized) stating clearly that the Owner (Jessica) is hereby and forever “Assigning” or “Transferring” the aforementioned rights to the Purchaser (Purchasing Production Company). Although this Agreement serves that purpose and even outlines all procedures, some companies who start this Agreement as an “Option” that then transitions into a “Purchase” (by any agreeable means), might therefore request the Assignment or Transfer at that time—to be exercised or requested by means of “Additional Deliverables.”)

  Glossary

  All the fancy (and confusing) phrases that get tossed around—and what they really mean.

  AFM —Acronym for the American Film Market, an annual film market held each November in Santa Monica, CA.

  Agent —Offers a service of writer representation in exchange for a 10 percent fee; brokers deals between the writer and producers/production companies for either commissioning their talents to write or negotiating the acquisition of their intellectual property. See also “Manager.”

  Arbitration —Arbitration is the process whereby two parties with a disagreement formally seek out a pre-vetted (and licensed) arbitrator to hear out both sides of their argument and grant him or her the authority to make a formal (and final) decision settling the disagreement. Organizations within the independent film world, such as the non-profit organization Independent Film & Television Alliance (IFTA), offer these services for reasonable rates.

  Attachments —Actors, director(s), or other “elements” (e.g., composers, political organizations) who legally commit themselves to work on a project prior to, or during the process of, funding. This process is called “packaging” and is used to increase the value of a script (or property) in order to presell and/or raise funds for productions, therefore increasing the potential for a green light.

  Backdoor Pilot —A gimmick used to introduce a new series or concept by making the series premiere or pilot feature-length, therefore making it capable of existing as a stand-alone TV movie if that pilot never transitions into a full-fledged series.

  Ba
ckstory —The biography of each of your script’s characters, which has helped shaped their (a) personal opinions and perspectives, (b) approach towards problem solving and decision making, and (c) has brought them into your story in the unique and interesting manner in which they arrive (and dictated how they can either help or hinder your protagonist). Backstories can also detail locations or other abstract aspects of your story… . But it essentially covers everything that’s already happened that has led us to your page one.

  Beat —A definitive moment of transition within a story (either for the overall story/plotline, or simply with a character during a given scene). It can be a moment conveying (verbally or non) a revelation or realization, or simply a character drawing a conclusion on what action he or she knows they must take.

  Beat Sheet —A handy tool for screenwriters of any level, a beat sheet is a breakdown of the most common feature-film story beats needed to keep a strong character arch, a solid B-story, and a flowing plotline in motion—all while ensuring the action, risk, and intensity of whatever your protagonist is experiencing climaxes at all the right points for maximum audience (and reader) appeal. Some beat sheets offer as few as five to six beats, while others climb near twenty-five … regardless of your preferred style, it’s a great way to keep your story on track.