UNTIL LIFE (PLUS 70) DO US PART – THE WRITER’S PRENUP

For many writers, working with a collaborator is great.  Instead of sitting in a room, alone, staring at the wall, and waiting for inspiration to strike, now there are two of you, sitting in a room, together, discussing last night’s episode of South Park, waiting for inspiration to strike.

            But as any writer who has worked with a collaborator knows, collaboration is like a marriage, and like a marriage, issues of money, control, separation and custody should be discussed and agreed to in advance.  In essence, the writers needs a prenup (a collaboration agreement) in order to ensure that even if the writing doesn’t go smoothly, conflicts with their partner will be minimized and they won’t end up losing the script altogether.  So, here are ten questions you need to ask, and know the answer to, before you start working with another writer.

  1. If me and my partner don’t have any agreement, then who owns the rights to the script?

Under the Copyright Act, the authors of a joint work are co-owners of the copyright in the work.  A “joint work” is defined as “a work prepared by two or more authors with the intention that their contribution be merged into inseparable or interdependent party of a unitary whole.

It’s safe to assume that in the vast majority of cases, a script will be considered a joint work, and therefore, safe to assume that you and your partner(s) own the copyright to the script equally.

Okay, but what if I want to own all the rights to the script, what then?

That’s fine.  Just as a studio can hire you to write a script, but keeps all the rights, you can hire a collaborator to work with you, but you will retain all the rights.  In order to do this, you need to have your partner sign a work-for-hire agreement.   Under the copyright act, if a writer works under a work-for-hire agreement, then the employer (you) are considered the author of the script, no matter how much work the other writer did.  This means that you alone control who you sell the script to and for how much money.  And if you have a proper work-for-hire agreement, the person buying your script will not need the co-writers signature on the purchase agreement.

A work-for-hire clause should say something like this:

To the extent that Employee Work includes any work of authorship entitled to protection under the laws of copyright, the parties acknowledge and agree that (a) Employee’s Work has been specially ordered and commissioned by Author; (b)  Contractor’s Work shall be deemed a “commissioned work” and “work made for hire” to the greatest extent permitted by law; and (C) Author shall be the sole author of Contractor’s Work and any work embodying the Contractor’s Work and the sole owner of the original materials embodying Contractor’s Work, and/or any works derived therefrom, including but not limited to the Author’s Work.

And one important catch, a work-for-hire agreement is supposed to be signed before the co-writer starts working.

     2. What happens if I didn’t get the co-writer to sign the work-for-hire agreement before he started writing?

You’re still okay, but now you need to co-writer to sign an assignment agreement, which should include language such as this:

Contractor hereby irrevocably grants, transfers and assigns to Author all right, title and interest in and to such Contractor’s Work (including but not limited to the copyright, trademark, and other proprietary and intellectual property rights therein), and any and all ideas and information embodied therein, in perpetuity and throughout the world, and Contractor waives all moral rights in Contractor’s Work to the greatest extent permitted by law.

       3.  If I do hire another writer, what do I have to pay him?

Anything you want.  I am assuming that you (or your production company) are not WGA signatories and that the other writer is not a member of the WGA.  You can agree to pay the writer a certain sum of money now (i.e., $10,000) or a percentage of money you receive in the future (“50% of any monies Author receives from exploitation of the Work”), or some combination of the two.

     4.  Do I have to give the other writer credit?  And what if I already wrote a treatment and I’m only using the other writer to help with the script?

Again, assuming that the deal is not under WGA jurisdiction, there is no requirement that you give the co-writer credit.  And, unless you are producing the script yourself, you cannot be sure about receiving any credit.  But, even if you are working with someone who is your equal partner, you should discuss and agree to what you want the credit will be.  If two of you are writing the script together, you should discuss whose name will go first.  If you came up with the story by yourself then you can agree that the credit should read

Story by [You]

Screenplay by [You & Partner]

            Again, keep in mind that once you sell your script, the producer may bring in additional writers who might drastically change your script (you wouldn’t be the first).  Therefore, both you and your partner should understand that the credit that the two of you discussed, may not be the credit you receive.  Don’t promise a writer a credit that you cannot deliver.

     5.  What happens if someone wants to option our script, but my partner refuses to deal because he doesn’t think we’re being offered enough money?

That would put you in a tough situation.   If you are joint authors of the script and your partner has not signed a work-for-hire agreement or assigned the rights to you, no producer will make a deal without both writers consent.  In order to avoid this problem, you want to discuss with your partner what your expectations for the script are.  While everyone hopes for that six-figure sale, such deals are relatively rare, especially for unknown writers.   On the other hand, taking the first low-ball offer that comes to you can result in accepting much less than the script is worth.  Another factor to consider is the quality of the buyer.  It’s one thing to sell your script; it’s a whole ‘nother thing for that script to then get made.   Is an established producer or “name” actor optioning the script, or is it an unknown with no produced credits?  Especially for newcomers, having a produced script under your belt can be much more helpful to your career than merely having a few more dollars in your pocket.  Discuss all of these factors with your partner before you go out into the marketplace and have a game plan as to what you want.  And think of a way to resolve a dispute before it happens.  Maybe you can agree that you will let a mutual friend help you decide, or you can simply flip a coin if you come to loggerheads.  But your script (and your relationship) will be much better off if you talk about these issues before there’s any money on the table.

     6.  What if we get halfway through the script and me and my partner get into a huge fight and can’t work together anymore?

A real tough question.  The writer’s equivalent of who gets custody of the baby after the divorce (and the baby hasn’t even been born yet).   If your partner was working under a work-for-hire agreement, that is the equivalent of a surrogate mother.  Your partner has no claim to the script and you should be free to hire another writer to finish the job or finish it on your own.  If you were equal partners on the script then hopefully, the two of you can agree on which one of you will finish the script.  Then, you can agree to some mechanism to determine how much the non-finishing partner will receive from any future sale.  For example, if the script was 50% finished and then you finish it by yourself, you would receive 75% of any proceeds and your partner would receive 25% (his ½ of the 50% he wrote).   If you were the one who came up with the original concept, then you might want to agree at the beginning of the venture that if such a situation should arise, you would be allowed to finish the script.

You could also agree that both of you would finish the script on your own and split any proceeds in the manner described above.  However, putting two scripts on the market that are at least 50% identical would probably be counter-productive.  Or, if you’re both going to finish the script, you could agree to let a third party read both and decide which one is better and should be submitted.  You’re a writer, be creative.  The important thing is to come to a fair agreement so that all of your hard work goes down the drain.

     7.  What about threesomes?

Threesomes can be great, but can also lead to more problems.  For example, what happens if two of you are getting along, but you decide that you can’t work with the third member anymore?  What order will your names appear in the credits?  It’s even more important when working with two partners to think about and discuss these issues before you begin.

And one important thing to note about three people writing teams.  If you are writing under a WGA contract, or if even one of the three is a WGA member, then for any sale, all minimums are doubled.  While this may sound great, what happens if the producer who wants to buy your script for the minimum price doesn’t want to pay any more?   You run the risk of losing the entire deal (100% of WGA minimum being better than 200% of nothing).  You might get pressured to drop one of the members of the team from the deal in order to get the script sold. Again, this is something you just need to keep in mind when working with a 3-person team, so that you can plan accordingly.

 


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2 Comments

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2 responses to “UNTIL LIFE (PLUS 70) DO US PART – THE WRITER’S PRENUP

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