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WARNING – always get a contract

Having been recently burned on a feature film script after taking a couple of ‘producers’ at their word that ‘we’re just writing the contracts now’ & ‘the contract will be with you asap’ I just wanted to reiterate what everyone probably already knows.

Before you start work, always agree terms and sign a contract first. Don’t do any development until everything is in order, no matter how trust worthy someone might seem. Even if it’s just a profit share style deal, make sure contracts are sorted first and make sure it’s clear within that contract what happens in the event the script isn’t made by whoever offers you the deal.

If someone is on the level they would have no problem providing a contract so if they’re stalling take it as a warning sign.

  • I'd mostly agree BUT...

    It's only worth signing something you truly understand, or you're in an even worse position. What seems fine on first reading can backfire and cause you big problems - in fact this is exactly what spannered a project back in March. Pretty much nobody will understand the impact of a contract laid out in front of them, especially a hotch-potch of copy and paste legalese.

    In fact, without having any kind of contract signing away your rights, you're in a stronger position. Under UK law, copyright is automatic and as long as you can prove you have the earliest draft, the producers have nothing to fall back on. They've left themselves very exposed, not you.

    2 years ago
    • That's what I was thinking ... In the absence of no contract, does the same legal assumption of copyright apply to rewrites?

      2 years ago
  • Great response from Paddy. Contracts can be funny things. I'd imagine that a great many contracts, just as with much statute legislation, can be proven unlawful, ultra vires and null and void. Not only must anything purporting to have the force of law behind it actually be lawful in its entirety but any contact that is unreasonable in Common Law is unenforceable. The most astonishing part of this is that not more nonsense gets challenged.

    2 years ago
  • The absence of a contract can work both ways and can bite producers on the bum too, if the screenwriter decides to make last minute demands once a lot of time and energy has been invested. By default the copyright is yours, so you still own the work you've done on it (under normal circumstances). Without you being more specific, it's difficult to see how you could have lost out apart from your time spent on the writing / development / research, but I find nothing is wasted, everything is recycled at some point down the line (if you own it).

    There can be legitimate delays to contracts. It costs money to have a contract drafted and it may be the producers are waiting on a development funding application or cashflow. Being impoverished is the natural state of film production companies in the UK, not a sign of a wheeler-dealer out to scam you.

    I'm not saying the producers aren't dodgy (how would I know?) but sometimes there are reasons for these things and I find some writers very quick to fly off the handle without first taking the time to understand why things are they way they are. It's frustrating being in limbo without a contract, but I would hesitate to recommend downing tools until something is signed sealed and delivered. It takes a bit of good will to grease the wheels and get things in motion and sometimes people will abuse that. You live with it and move on.

    2 years ago
  • Contracts are expensive, and frankly after years of dealing with contracts in business in general, my experience they are only as good as the get out or termination clauses at the end. For me, now in the film/tv business (Producer), I start with a "Heads of Agreement" which puts in simple language , line by line, what you expect each participant to do. You need to cover fees, length of contract, who owns the copyright, who is the boss - the team leader, and what happens if there is a terminal disagreement or someone falls ill and can't perform. That does for the Preparation of a project ( when there is no cash, but lots of enthusiasm) but when the money starts to come in for making the movie, take some of it to a decent media lawyer and get a proper contract prepared and signed between you. Generally though the heads of agreement will be sufficient on smaller projects. Most importantly get all the parties to sign the same sheet that the initiator had signed. If sending for remote signature (by e-mail) .pdf keep each returned signatory's signed reply, and if they don't sign - don't go any further with the project.

    2 years ago
  • I interviewed - Tony Morris - author of The (UK) Filmmakers Legal Guide/senior media solicitor at a big Chancery Lane firm - for the Britflicks podcast... There might be something in it that you and others in the thread might find useful ;) www.britflicks.com/podcast/23792/Podcast...

    2 years ago
  • Thanks for all the comments. In response to Daniel's comments, no the original copyright was never in danger just the months of development and multiple re-writes they requested that are now unusable. According to these producers they own the rights to this work (they didn't tell me this until after I'd done the re-writes).

    On other projects I'd always kept the rights to anything done in development so I'm not sure what the official law is on this point.

    As for contracts being expensive to produce as a reason; these 'producers' were actually lawyers by profession so shouldn't really have been a major issue for them.

    2 years ago
    • No way do they own the rights to anything. Unless they paid for the rewrites in which case it can get messy.

      You want to use them, go ahead. Lawyers can be lying bastards.

      What you should do now is document what happened, get it witnessed by your own lawyer. That document will basically say that "Producer lead me to believe there was a good chance of getting funded. On that basis I allowed him to go to market and, in good faith, wrote additional drafts. At no point was I ever paid anything, and as far as I am concerned all the risk was his. He could have gone for formal options at any time but didn't. ALL the work is mine, entirely unencumbered. Any claim by him that he somehow has rights in the work is entirely bunk." This becomes a contemporaneous record should a court case arise. Make it as full and detailed as possible. You're telling the judge the story.

      I'd ask him for a letter confirming that he accepts he has no rights.

      If he won't agree, write a blog, naming names, about the dispute.

      Also - if he's a practising lawyer - contact The Law Society or the Bar etc re acceptable conduct. You can also have fun with Professional Indemnity - notify all the providers of the issue and whoever insures him - if any - might decide to risk adjust their premium :-)

      2 years ago
    • Marlom makes a good point about lawyers, they must realise they're bluffing. Of course you hold the rights to the underlying work, my guess is they're trying to claim that they are co-writers of the redrafts as you incorporated their notes and ideas. They must know that you cannot protect an idea, only an expression of the idea (ie what you wrote), and so are bluffing.

      Don't imagine lawyers as impartial appliers of fairness, they're more like thugs for hire. It's why people don't like lawyers. Better Call Saul.

      2 years ago
  • Thanks for the comment Marlom. I didn't think they could own the rights to the re-writes (no they never paid for them - it would have been a deferred fee had it got made).

    I've already asked them to sign a waiver to confirm they hold no rights but they've since gone silent.

    2 years ago
    • Standard practice. Should the project get a backer, they'll come looking for go away money. So won't sign off right now.

      That's why blogging can be powerful - publicity can impose a cost on THEM at no cost to you.

      2 years ago
    • @Marlom Tander Yup, that's what's nailed a project I lined up for earlier this year with another SP member, was going to cost tens of thousands of pounds to get another producer (x4 people) with a spurious claim to back off.

      As soon as they knew I'd got interest, they're suddenly all over a project they'd given up on, and are trying to force their renewal option blah blah. Huge stress, cost me quite a lot of time and money. Now we're at a stalemate/standoff, everybody loses.

      2 years ago
  • Surely, the following would have been mentioned in emails that passed between you and the producers (1) that your work would be subject to a contract to be organised by the producers (2) if so what contractual info in those same emails? You may not have a legally binding contract but your emails may provide concrete evidence of the producers enforceable obligation to provide the contract. Take any relevant email details to a solicitor who usually don't charge for the first consultation meeting. Most crooks of this sort are ultimately relying on you going away, not fighting back.

    2 years ago
  • Hear you go, SP might want to add it to the resources.

    For when broke "producers" want to take your script to market.

    "Heads of Agreement

    Writer owns all rights in the script. Producer owns NOTHING until they PAY for it under whatever formal contractual terms are agreed.

    Since Producer is unwilling to purchase an option, Writer doesn't think Producer has a cat in hells chance of getting the project to a level at which Producer would be able to commit to formally optioning or contracting the rights, BUT is willing to allow Producer to explore the market and see what he can do.

    It is noted that all expenses of time and money by the Producer are at their risk, just as the writer has invested his own time in the writing. The writer may agree to rewrites and redrafts and such works may involve reacting to suggestions and input from the Producer, but even so, the work will be entirely the writers own. Suggesting that "it would cool to have a kick ass girl as Jane" might be something the writer acts on but is in no way the kind of contribution that gains the Producer any rights. The Producer shall NEVER acquire any rights until they are paid for.

    This agreement says NOTHING about the terms that might eventually be agreed should the Producer decide that they they wish to purchase/option. It is simply assumed by both parties that terms would be agreed as both parties are keen to see the film made, and that such terms will be commensurate with the scale of the project as realised."

    2 years ago
  • I once wrote six page story outline containing a number of unique foundational inventions. It was not however a script. A writer came on board who wrote a first draft script clearly based on my story. An extensive exchange of emails and ideas followed that also included clear intentions to form a company shared by the script writer and my producorial associates. A senior media lawyer confirmed that my original six page story together with the copious draft notes I contributed to the rewrites constituted unassailable underlying rights no matter how much was written over them by another.

    So when calculating such rights, deciding whether another party has contributed significantly, even if only a few percent of the final script, can seriously compromise presumptions of sole exclusivity.

    2 years ago
    • But in that case you were the creative, and the writer was simply pretty much just your amanuensis/assistant/work for hire, and provided your contract with them reflected that, you'd be unassailable, (though problems arise if you pay low and it seems from emails etc that there was an understanding they would be co-writer or suchlike).

      In the OP case, it's the writers story, the writers IP and the writer needs to defend that. Where writers get enthused by no money producers the point is to get nailed down at outset that everything is the writers UNTIL it's formally changed.

      Point is, as a writer, and the creator of the initial IP, you can tell the Producer how it's gonna be, and if they don't like that they can make a counter suggestion, and if you find a point of agreement, work together, and if not, not.

      Also, you DO NOT want any third parties involved unless you get to meet them, and make clear the basis of the project. Courts can hold that a bullshitting producer who promises the new writer a slice of the action can be deemed to be creating valid contracts even if as far as you are concerned he had no authority to do so.

      In this type scenario, while letting the producer go to it, you need to be hands on with key managerial elements, and at the slightest sign that producer doesn't understand that, cut them loose.

      2 years ago
  • John's above scenario is different to mine but I think a way to stop all these problems is for both parties to have some kind of written agreement before they start work so everyone knows where they stand.

    I like Marlom's agreement; especially the 2nd paragraph.

    2 years ago
  • Richard, I've been following this thread, and had nothing to add to Paddy and Marlom's comments. But how about this: since you signed nothing and were paid nothing, I have to agree that it is your work. Why not get an official copyright through the government office? Since I live in the U.S., I'm not sure of the legal ramifications of that in the U.K., but here, a U.S. copyright has legal teeth--if the producers use your work without permission, you'll need this kind of protection. Register your work.

    2 years ago
  • hey Guys, I've been following this thread and there's a lot of good advice and support here...don't all hate me but my 'day job' when I'm not trying the old filmmaking is an IP lawyer (someone's gotta do it) - anyway, a few points from both sides of the fence;

    1. Its always good to get a contract, having a written understanding between two [or more] parties hopefully limits any misunderstandings and outlines rights and obligations. Without getting into a huge debate about contracts and legal 'validity' & 'weight' - do be careful with phrases like 'standard clause' or 'boilerplate' - I wouldn't get the brakes on my car fitted by a mate who "knows about brakes because he's seen brakes on some other cars"...OK lawyers can be expensive but there are tonnes of normal guys and girls who are happy to help if you ask...
    2. In contrast to 1. (I am a lawyer ;-) filmmakers work in the creative space and in those initial early stages of development it can be a step too far to start talking about big legal agreements - the Heads of Terms (as suggested above) or Memorandum of Understanding can be a good stop gap - its basically an agreement to agree; setting out what you're intending to do and maybe referencing a further, more detailed agreement in the future. Word of warning, a lot of Heads/MoU's are stated as non-legal binding (although you can [and should] carve out clauses if you like), so whilst its good to get this type of record be aware of the relative weight of such a document.
    3. IP rights; again, some good stuff in the thread - copyright in England is an unregistered right; it comes into being the moment you do an original work (there is a threshold but its very low - when compared to other types of IP) - basically speaking, you do something of your own/a creation of [the/your] mind, you can be pretty sure it attracts copyright. If someone else [a producer/director] starts to develop the work with you, regardless of whether they are paying you, their contribution may also attract copyright albeit as a derivative to your original work - so you can see how layering of rights can become complex quite quickly - see point 1.
    4. Richard, you seem like a good guy who is working hard and in good faith so in my opinion I don't think you should be too concerned...I'd be happy to discuss the case with you and see what's what and if you like to draft a letter to these Producer type people asserting your rights and well...kind of giving them an IP bitch slap (in a professional way of course)...

    anyway, hope that's some help - pretty dull stuff really, making films is much more fun so let's do that eh ;-)

    2 years ago
  • Interesting thread. A few small observations.

    If I think something's been agreed I send an email saying what I understand the agreement to be. Not airtight, but it can clear up misunderstandings and maybe help you later. No substitute for a proper contract of course, nor a Memorandum of Understanding.

    Legal advice. Hah! Just been bitten on that. Again.
    Do two lawyers EVER agree? Be wary of advice. And as a judge said, it's only worth as much as you paid for it.

    Recently a friend of mine got a pre-nuptial thrown out of court because she wasn't given time to get proper legal advice first. He produced it the night before the wedding! So romantic. And yes, she was marrying a film producer. A big name over here as it happens. Very tempting to say who...
    If you're pressured into signing something where you don't understand the implications it may not have legal validity. Elton John v DJM establshed that. I wouldn't count on it though! It's up to you to say, "Hold on! I need to get advice on this."

    My 2p ;-)

    2 years ago
  • Cheers for all the comments. I don't think the 'producers' would be foolish enough to go make my script in secret. Will keep tabs on them if they do produce any work though just in case. I always get my stuff registered.

    Thanks Geof for offering to take a look. I'll message you.

    2 years ago
  • Hey Richard, don't be too sure. Rejigging of ideas and scripts goes on all the time. Someone sufficiently talented can make a few simple changes and practically steal directly from you. And a lot of wannabe types will turn on you even so just to try their luck. It's happened to me way too many times. So registering your work is the best first step. Personally I use the USA library of congress copyright registry service, which is all online and has legal force. It is a document that can be produced in a UK court to prove ownership of a creative work. But bear in mind you will need to register new rewritten drafts of any screenplay. If you make substantial changes and rewrites, that can throw doubt on claiming versus the original version registered. In my experience, anyone unwilling to commit themselves in writing, and for a definite scale of fees or remuneration that is easily understood, is simply not serious or professional. To be emphatically avoided! Idealism is all very well, but all too often it goes along with getting ripped off.

    2 years ago
  • Good god Richard. What a suspicious sounding chap you are! And you actually READ the damn things? I don't think I ever have. And had no trouble so far. Not that I get that much paid work anyway.......

    2 years ago
    • I do READ the contracts before signing my rights away funnily enough Allan. How would you know if you've ever had trouble if you never read them in the first place?! Lets hope you've not signed an agreement stipulating you must live as a walrus. (see: 'Tusk')

      I'd say 'sensible' rather than 'suspicious'.

      2 years ago
  • Always remember the first law of contract law.

    He who writes the contract makes the law.

    2 years ago