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7.01 WRITER AGREEMENT—WORK FOR HIRE
THIS AGREEMENT, effective as of _________, 20__, is made
by and between [NAME OF PRODUCER], located at [PHYSICAL
ADDRESS] (“Producer”), and [NAME OF WRITER], located at
[PHYSICAL ADDRESS] (“Writer”), concerning the Writer’s writing
services in connection with the motion picture project entitled
“_______________” (“Picture”). The following terms and conditions
shall apply:
Date: By using an effective date right at the beginning of the
contract, you eliminate disputes over when a contract was signed
and therefore when an option lapses. Few contracts are signed by
all parties on the same day, so avoid date of signature.
Producer: You, as the filmmaker, are the “Producer.”
Writer: The author of the script is the “Writer,” and the owner of
the rights you want to acquire. If there is more than one author,
be sure to list all of them here and have all of them sign as parties
to the deal. See Chapter 8 for more information on how to
protect yourself when two or more writers have collaborated to
write a script.
1. ENGAGEMENT:
(a) Writer shall render all services customarily rendered by
writers in the motion picture industry and at all times promptly
comply with Producer’s reasonable instructions with respect to
writing the screenplay for the Picture (“Screenplay”).
(b) First-Draft Screenplay: Writer shall write the first-draft
screenplay (“First Draft”) based upon material supplied to Writer by
Producer (the “Assigned Material”). Writer shall commence writing
services upon execution hereof and shall deliver the First Draft to
Producer within ten (10) weeks thereafter.
Schedule: This paragraph and the ones that follow present a
carefully thought-out model that tracks the writing schedules
set forth in the WGA agreement. You can modify the schedule
according to your discussions with the writer you hire, but keep
a schedule in your contract. Many of the problems that come
up between a writer and a producer are a function of different
expectations and attitudes about time. You have a much better
chance at a good, working relationship with the writer you hire
when you start out with a written schedule.
Hint: Many contracts concerning writing services refer to the
minimum payments or other minimum rights set forth in the MBA,
even though the producer is a non-signatory. This a common way
to shorthand such things as wages, credits, and creative rights even
when the writer is not qualified to enter the guild. For instance,
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in the above paragraph, you could replace the last sentence with
“Writer shall perform services according to the minimum schedule
of payments contained in the MBA of the WGA.” If the contract
is to be pursuant to the WGA, state that clearly and require the
Writer to become or remain a member in good standing.
(c) Option For Rewrite and Polish: Producer shall have an
irrevocable and exclusive option (“Option”), for a period of three
(3) weeks after delivery of the First Draft, to engage Writer to write
and deliver to Producer a rewrite of the First Draft (“Rewrite”) and a
polish (“Polish”) thereof. Producer may exercise said Option by written
notice to Writer at any time during the Option period. Writer shall
commence Writer’s services with respect to the Rewrite upon exercise
of the Option, and shall deliver the Rewrite to Producer, incorporating
such changes to the First Draft that Producer may require, no later
than four (4) weeks after commencement of services.
Producer shall have a period of three (3) weeks from the date of
Producer’s actual receipt of the Rewrite (the “Reading Period”) to
study the Rewrite and to confer with Writer regarding any changes
to the Rewrite which Producer may require. Writer shall commence
Writer’s services with respect to the Polish on or before the expiration
of the Reading Period, and Writer shall deliver the Polish to
Producer, incorporating such changes to the Rewrite that Producer
may require, no later than two (2) weeks after commencement of
services.
Hint: By stating that this is an option, you have the right, but not
the obligation, to obtain additional services from this writer.
(d) Postponement of Services: Producer may require Writer
to postpone writing either the Rewrite or Polish for a maximum
period of six (6) months, provided that Producer pay Writer the
applicable fixed compensation for such services as if the services
had been timely performed. Writer shall render such postponed
services when required by Producer, subject only to Writer’s professional
availability.
Comment: This is a fair balancing of interests of the producer
to pace progress during development and of the writer not to be
hassled by a producer who can’t decide what to do.
(e) Time of the Essence: Time of delivery is of the essence to
Producer.
2. EXCLUSIVITY: At all times during the writing periods hereunder,
Writer’s services shall be furnished by Writer to Producer
on an exclusive basis. At all other times, Writer’s services shall be
furnished on a non-exclusive, but first-priority, basis with no other
services to materially interfere.
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Hint: This paragraph does not add much in most situations, since
writers work at home, but it does give you certain rights in case of
a flagrant violation. Writers have to avoid contractual conflicts,
but as a practical matter most writers don’t work exclusively on a
single script. They are always noodling about multiple projects.
3. COMPENSATION: Upon condition that Writer shall fully perform
all material services required to be performed by Writer and
that Writer is not in default of this Agreement, Producer agrees to
pay to Writer, as full consideration for all services to be performed
by Writer hereunder, and for all rights herein granted, and all
representations and warranties made, the following sums in the
following manner:
(a) Fixed Compensation:
(1) First Draft. $________, payable one half (½) upon execution
of this Agreement and one half (½) upon delivery to Producer
of the completed First Draft.
(2) Rewrite. In the event Producer exercises Producer’s
Option hereunder, Producer shall pay to Writer $_________________,
payable one half (½) upon commencement of Writer’s services and
one half (½) upon Writer’s delivery to Producer of the completed
Rewrite.
(3) Polish. In the event Producer exercises Producer’s
Option hereunder, Producer shall pay to Writer $_______________
in connection with the Polish, payable upon commencement of
Writer’s services in connection therewith.
(b) Additional Compensation: If the Picture is produced,
writer shall receive two and one-half percent (2.5%) of the final
locked budget of the picture (less overhead, insurance, bond, and
interest charges) with a ceiling of $_____________ and a floor of
$____________, less any amount previously paid to writer, payable
on or before the first day of principal photography.
How much?: For experienced writers, there are quotes that are
used as a basis for payment. A quote is merely the price that a
writer received for a past assignment. Such quotes tend to establish
a floor for the price that the writer accepts in the future. If one of
those past scripts was produced and did very well at the box office,
that fact usually increases the price. If the film made from the script
was a bomb, that fact can soften the price from the past quote. Be
sure to verify that the quote given to you was legitimate.
Hint: If you don’t have much money up front, be prepared to
pay more when principal photography begins. However, there are
limits. Every film has its own economics. No matter how much
money there is to spend on a production, there is a limit to the
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amount of the film’s budget that goes to the script. That is why this
paragraph is structured as a percentage of budget. The real test of
a script is whether it is made into a movie. You can never afford
to pay up front for the full value of the script if the picture isn’t
actually made. Even studios do not throw around the big bucks
unless they are sure that the film is going to be made. Instead,
there is a standard paragraph calling for additional payments
to the writer in the event that the film is made. If you are on a
real shoestring, even these will be deferred until money comes in
as in the next paragraph.
(c) Contingent Compensation: An amount equal to five percent
(5%) of one hundred percent (100%) of the Producer’s share of Net
Profits, if any, from the Picture, if Writer receives sole “screenplay
by” credit in connection with the Picture, or an amount equal to
two and one-half percent (2.5%) of the Producer’s share of Net
Profits, if any, from the Picture, if Writer receives shared “screenplay
by” credit in connection with the Picture. “Net Profits” shall
be defined, accounted for, and paid in the same manner for Writer
as for Producer whether Producer’s contingent compensation is
called Net Profits, Adjusted Gross Profits, or otherwise.
Note: The word “profit” in the film industry has become a joke
due to some ingenious studio accounting practices. “Contingent
compensation” avoids much of the negative reaction triggered
by the word “profit.”
Hint: More for reasons of history than logic, the contingent participation
that goes to writers has settled in at 5% for sole writing
credit, reducible to 2.5% for shared writing credit. That is the
standard in the industry in spite of the fact that the contingent
compensation is not mentioned in the MBA of the WGA. So, if a
writer asks for such participation, it is hard to argue against it. In
a situation where a screenwriter is also your partner, you might
go above that, but you would be doing so as a function of the role
that the screenwriter plays as a partner, not for the screenwriter’s
role as a screenwriter. The key is the definition of net profits.
The language above leaves everything to be negotiated in the
future. The most generous language you can possibly agree to is
a definition that links the writer’s definition to the producer’s. For
example: “Net Profits shall be defined, calculated, and paid on the
same basis as Producer’s contingent compensation, whether such
compensation is designated Net Profits, Adjusted Gross Profits, or
otherwise.” This is a generous provision because all of the various
categories of profit participation are treated as one.
4. CREDIT:
(a) In the event the Picture is produced and Writer has performed
all services required of Writer hereunder, Writer shall be
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entitled to “screenplay by” credit in connection with the Picture
as determined pursuant to Exhibit A. All other matters regarding
prominence, placement, form, size, style, and color of Writer’s credits
shall be in Producer’s sole discretion. Any paid ad credit to which
Writer is entitled hereunder shall be subject to Producer’s and any
distributor’s usual and customary exclusions. Nothing herein shall
be construed to prevent so-called award or congratu latory or other
similar advertising with respect to the material or Picture that omits
the name of the Writer.
Hint: Note the deferment to Exhibit A. Read it carefully to understand
the process being proposed. Do not commit irrevocably to
the writer’s credit unless you are planning to finance the movie
yourself, or you have the financial commitment well in hand. The
WGA requires producers who sign their agreement to follow the
guidelines they have adopted. Even if you are not a signatory, it is
best to use their guidelines. The WGA provides a well thought-out,
detailed guideline to determining credits, which ought to hold
down disputes. It is difficult for a writer to argue against the use
of the WGA credit guidelines. Exhibit A was prepared by one of
the oldest and largest law firms based in Los Angeles and avoids
the pitfalls of merely referencing the WGA agreement, which
carries with it certain procedural requirements not available to
you unless you sign the WGA agreement.
(b) Inadvertent Non-Compliance: No casual or inadvertent
failure to comply with the provisions of this Paragraph shall be
deemed to be a breach of this Agreement by Producer unless writer
gives Producer notice of a failure to comply hereto and Producer
fails to exert good-faith efforts to correct prospectively such within
a reasonable time thereafter.
Comment: This is a standard, important provision.
5. WORK-MADE-FOR-HIRE:
(a) Writer hereby acknowledges that all of the results and
proceeds of Writer’s services produced for the Picture hereunder
shall constitute a “work-made-for-hire” specially commissioned
by Producer and Producer or Producer’s assignee shall own all
such results and proceeds. Producer shall have the right to use
Writer’s name and approved likeness with respect to distribution
and exploitation of the Picture. Producer may make such use of
the Picture and distribution of the Picture as Producer, in its sole
discretion, shall deem appropriate.
(b) If Writer’s services are not recognized as a “work-madefor-
hire,” Writer hereby irrevocably grants, sells, and assigns to
Producer, its successors and assigns, all of Writer’s rights, title, and
interest of any kind and nature, in and to the Picture, including,
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without limitation, all copyrights in connection therewith and all
tangible and intangible properties with respect to the Picture, in
perpetuity, whether in existence now or as may come into existence
in the future.
Hint: This paragraph is at the heart of a writer’s agreement. It
says that you own everything that the writer writes. As a Work
for Hire, you (or your production company) will be listed as the
Author for copyright purposes.
(c) Certificate of Authorship: Writer will execute and deliver
to Producer in connection with all such material the Certificate of
Authorship attached hereto as Exhibit B.
Hint: See comments on that form.
6. WRITER’S INCAPACITY: If, by reason of mental or physical
disability, Writer shall be incapacitated from performing or
complying with any of the terms or conditions of this Agreement
(“Writer’s Incapacity”) for a consecutive period in excess of five
(5) days or an aggregate period in excess of seven (7) days during
the performance of Writer’s services, then:
(a) Suspension: Producer shall have the right to suspend
Writer’s services hereunder so long as Writer’s Incapacity shall
continue, but in no event shall any suspension hereunder exceed
sixty (60) days.
(b) Termination: Producer shall have the right to terminate this
Agreement and all of Producer’s obligations and liabilities hereunder
upon written notice to Writer; except, however, said termination
shall not terminate Producer’s obligations and liabilities hereunder
with respect to any drafts of the Screenplay delivered by Writer
to Producer in conformance with the terms and conditions hereof
(including, without limitation, any obligations and liabilities that may
have accrued relating to the payment of Additional Compensation
and the according of credit hereunder).
Comment: The above paragraph and the next four paragraphs
all deal with your rights when you believe the writer is in default.
Some independent producers think this all looks too ominous and
leave these provisions out. Because the money involved is so much
less than that involved in studio deals, it is usually okay just to
“cut your losses” and go to another writer. You have the right to
terminate even if it is not spelled out in the contract.
7. WRITER’S DEFAULT: If Writer fails or refuses to write, complete,
and deliver to Producer any material herein provided for within
the respective periods herein specified, or if Writer otherwise fails
or re fuses to perform or comply with any of the material terms
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or con ditions hereof other than by reason of Writer’s Incapacity
(“Writer’s Default”), then:
(a) Suspension: Producer shall have the right to suspend
Writer’s services hereunder so long as Writer’s Default shall continue,
but in no event shall any suspension hereunder exceed a
duration of thirty (30) days.
(b) Termination: Producer shall have the right to terminate
this Agreement and all of Producer’s obligations and liabilities
hereunder upon written notice to Writer; except, however, said
termination shall not terminate Producer’s obligations and liabilities
hereunder with respect to any drafts of the Screenplay delivered
by Writer to Producer prior to Termination in conformance with
the terms and conditions hereof (including, without limitation, any
obligations and liabilities that may have accrued relating to the
payment of Additional Compensation and the according of credit
hereunder).
(c) Anticipatory Default: Any refusal or statement by Writer
implying that Writer will refuse to keep or perform Writer’s obligations
and/or agreements hereunder shall constitute a failure to
keep and perform such obligations and/or agreements from the
date of such refusal or indication of refusal and shall be a Writer’s
Default hereunder.
8. TERMINATION RIGHTS: Termination of this Agreement, for
any reason whatsoever, shall:
(a) Compensation: Terminate Producer’s obligation to pay
Writer any further compensation; except, however, said termination
shall not terminate Producer’s obligation to compensate Writer as
provided hereunder with respect to any drafts of the Screenplay
theretofore delivered by Writer to Producer in conformance with
the terms and conditions hereof (including, without limitation,
any obligation that may have accrued relating to the payment of
Additional Compensation hereunder).
(b) Refund or Delivery: If termination occurs prior to Writer’s
delivery to Producer of the material on which Writer is then currently
working, then Writer shall either immediately refund to
Producer the compensation which may have been paid to Writer as
of that time for such material, or immediately deliver to Producer
all of the material then completed or in progress, to be decided in
Producer’s sole discretion.
9. SUSPENSION RIGHTS: No compensation shall accrue or
become payable to Writer during the period of any suspension. If
Producer shall have paid compensation to Writer during any period
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of Writer’s Incapacity or Writer’s Default, then Producer shall have
the right (exercisable at any time) to require Writer to render services
hereunder without compensation for a period equal to the
period for which Producer shall have paid compensation to Writer
during such Writer’s Incapacity of Writer’s Default; unless Writer
immediately refunds to Producer said compensation paid to Writer,
upon receipt of notice from Producer to commence such services
hereunder.
10. WRITER’S RIGHT TO CURE: If any Writer’s Default is inadvertent
and reasonably curable, Writer shall have a period of three (3)
calendar days from the date of notice of default to cure (one time
only) such Writer’s Default; provided that if such Writer’s Default
occurs during principal photography of the Picture, Writer’s cure
period shall be reduced to twenty-four (24) hours. Any such cure
by Writer shall not preclude Producer from exercising any rights
or remedies Producer may have hereunder or at law or in equity
by reason of Writer’s Default.
������������������
Go to Chapter 10, Provisions Common to Most Agreements,
to finish up this contract. Each one of the provisions set
out there ought to be included in this contract for all
the reasons listed next to those provisions, except the
Ownership paragraph that duplicates one of the paragraphs
above. In fact, the signature block is located among those
provisions—no signatures, no agreement. (All of those
paragraphs refer to “Owner.” Change “Owner” to “Writer”
to make the language match.)
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EXHIBIT A
CREDIT DETERMINATION
A. Screen credit for the screenplay authorship of a featurelength
photoplay will be worded “Screenplay By” or “Screenplay
_________.”
B. Except in unusual cases, screen credit for the screenplay will
not be shared by more than two (2) writers and in no case will the
names of more than three (3) be used, provided, however, that two
(2) established writing teams, recognized and employed as such and
of not more than two (2) members each, may share screen credit
for the screenplay. The intention and spirit of the award of credits
being to emphasize the prestige and importance of the screenplay
achievement, the one (1), two (2), or at most three (3) writers or
two (2) teams chiefly responsible for the completed work will be
the only screenwriters to receive screenplay credit.
C. The only exception to the foregoing shall be a photoplay on
which one (1) writer (or a team) writes both the original story and
screenplay. In this case, the credit may be worded “Written By.”
D. The term “screenplay” means the final script (as represented
on the screen) with individual scenes, full dialogue and camera
setups, together with such prior treatment, basic adaptation, continuity,
scenario, dialogue, added dialogue or gagging as shall be
used in and represent substantial contributions to the final script.
E. The term “photoplay” means a feature-length photoplay.
F. No production executive shall be entitled to share in the
screenplay-authorship screen credit unless he does the screenplay
writing entirely without the collaboration of any other writer.
G. When more than one (1) writer has substantially contributed
to the screenplay authorship of a photoplay, then all such writers
will have the right to agree unanimously among themselves
as to which one (1) or two (2) or, in exceptional cases, three (3)
of them, or two (2) teams of the nature above mentioned, shall
receive credit on the screen for the authorship of the screenplay.
If at any time during the course of production all such writers so
agree, then the Producer will not be obligated to issue the notices
specified in Paragraphs K through R of this schedule.
H. The Producer shall have the right to determine in which of
the following places the screenplay credit shall appear on the
screen:
1. On the main title card of the photoplay,
2. On a title card on which credits are given only for the
screenplay,
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3. On a title card on which credits are given for the
original story,
4. On a title card on which credits are given for the
sources of the material upon which the screenplay was based.
I. A writer whose contribution is judged by the Producer to
represent a substantial portion of the completed screenplay shall,
for the purpose of this Agreement, be considered a substantial
contributor. As a substantial contributor, he shall be entitled to
participate in the procedure for determination of screen credits.
J. The screen credits and also the work of writers making substantial
contributions but not receiving screen credit may be publicized
by the Producer.
K. Before the screen credits for screen authorship are finally determined,
the Producer will send a written notice to each writer who
is a substantial contributor to the screenplay. This notice will state
the Producer’s choice of credits on a tentative basis, together with
the names of the other substantial contributors and their addresses
last known to the Producer.
L. The Producer will make reasonable efforts in good faith to
communicate with such writers. No notice will be sent to writers
outside the United States or writers who have not filed a forwarding
address with the Producer. In the case of remakes, the Producer
shall not be under any obligation to send any notice to any writer
contributing to the screenplay of the original production unless
such writer received screen credit in connection with the original
production.
M. The Producer will keep the final determination of screen
credits open until a time specified in the notice by the Producer,
but such time will not be earlier than six o’clock, p.m., of the fifth
business day following dispatch of the notice above specified. If,
by the time specified, a written notice of objection to the tentative
credits or request to read the script has not been delivered to the
Producer from any of the writers concerned, the tentative credits
will become final.
N. However, if a protest or request to read the script is received by
the Producer from any writer concerned within the time specified
in Subdivision M hereof, the Producer will withhold final determination
of credits until a time to be specified by the Producer,
which time will not be earlier than forty-eight (48) hours after
the expiration time specified for the first-notice mentioned in the
foregoing paragraphs.
O. Upon receipt of a protest or request to read the script, the
Producer will make a copy of the script available for reading at its
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place of business. The Producer will also notify by fax the writer
or writers tentatively designated by the Producer to receive credit,
informing them of the new time set for final determination.
P. If, within the time limit set for final determination of credits,
exclusive of any writer or writers waiving claim to screen credit,
all of the writers entitled to notice have unanimously designated to
the Producer in writing the name of the one (1) or two (2) or, in
exceptional cases, three (3) writers or two teams to whom screenplay
credit shall be given, the Producer will accept such designation.
If such designation is not communicated to the Producer within
the time above mentioned, the Producer may make the tentative
credits final or change them as the Producer sees fit within the
requirements as to wording and limitation of names.
Q. The writer shall have no rights or claims of any nature against
the Producer growing out of or concerning any determination of
credits in the manner herein provided, and all such rights or claims
are hereby specifically waived.
R. Any notice specified in the foregoing paragraphs shall be sent
by the Producer by faxing, mailing, or delivering the same to the
last known address of the writer or may be delivered to the writer
personally.
S. In the event that after the screen credits are determined as
hereinabove provided, material changes are made in the script or
photoplay that, in the sole and absolute discretion of the Producer,
justify a revision of the screen credits, then the procedure for
determining such revised credits will be the same as that provided
for the original determination of credits.
T. The writer shall not claim credit for any participation in the
screenplay authorship of any photoplay for which the credits are
to be determined by the procedure herein provided for prior to
the time when such credits have in fact actually been determined,
and no writer shall claim credits contrary to such determination.
U. No casual or inadvertent failure to comply with any of the
provisions of this Exhibit shall be deemed to be a breach of the
contract of employment of the writer, or entitle him to damages
or injunctive relief.
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EXHIBIT B
CERTIFICATE OF AUTHORSHIP
I, __________________, hereby certify that, for good and valuable
consideration, receipt of which is hereby acknowledged, I have
been commissioned to perform writing services in connection with
a motion picture presently entitled “______________” pursuant to
an agreement (the “Agreement”) between me and ________________
(“Producer”), dated as of ______________, 20__, and that any and
all stories, screenplays, and other material created, composed, submitted,
added, or interpolated by me (the “Work”) in connection
therewith are “work made for hire” for Producer. I further certify
that Producer is the “author” of the Work for all purposes, including,
without limitation, the copyright laws of the United States, and
the owner of the Work and all of the results and proceeds of my
services arising out of or in connection with the Agreement, including,
without limitation, the theme, plot, characters, ideas, and story
contained in, and all copyrights (and all extensions and renewals of
copyrights) in and to the Work, and all rights therein and thereto,
including the right known as “droit moral,” and the right to make
such changes therein and such uses thereof as Producer may from
time to time determine. I hereby waive the benefit of any provision
of law known as “droit moral” or any similar or analogous law or
decision in any country of the world.
I further represent and warrant that the Work (except material
furnished to me by or on behalf of Producer) is original with me
or in the public domain throughout the universe; to the best of my
knowledge does not defame, infringe upon, or violate the rights
of privacy, rights of copyright, or other rights of any person or
entity; and is not the subject of any litigation or to the best of my
knowledge claim that might give rise to litigation.
IN WITNESS WHEREOF, I have executed this Certificate of Authorship
as of this ____________, 20__.
_________________________
(Writer)
Hint: Many people add provisions that turn this simple Certificate
of Authorship into a contract of its own. The agreement to
which it is attached controls all the terms and conditions of the
work. Therefore, it is not necessary to clutter this simple certificate
with other terms and conditions. Also, it is never a good idea to
repeat subject matter because you could end up with internal
inconsistencies in your contract.
You can download this form at
www.clearanceandcopyright.comUse the code: ibotCC3
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