IT DEPENDS: What’s that mean? Words.

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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You would think being writers that we’re all pretty familiar with what words mean. But a cavalier approach to that assumption might lead one into a situation where the communication is lost among people using the same words. And it isn’t always obvious when words are the cause of misunderstanding. Contrary to a lot of thinking, words aren’t universally defined and meanings can change. Words can mean different things according to the context they’re used within or the group who uses them. Let’s start with a very specific example.

Many people are aware (or should be) that the words “flammable” and “inflammable” point to the same instance of something that catches fire. Most people use them interchangeably to indicate you shouldn’t smoke around the item so labelled. Being flippant, you could say they mean the same thing and not think anything more about it other than how bizarrely our English language has evolved.

But what if I were to tell you that there is a small group of people that make a distinction between the two words? What if this group of people use the term “flammable” to apply only to items that are readily expected to catch fire, e.g. gasoline, and use the term “inflammable” for items that generally aren’t expected to catch fire but can e.g. a cheaply manufactured couch?

Script EXTRA: The Contract Conundrum or What's In a Name?

Outsiders entering conversations with this group about what not to throw on a bonfire could still be understood for the most part by all in the broad sense. But for the unaware it would be a quandary as to why a snicker flitters through the gathering as you refer to “flammable” furniture. In this case the communication flaw would likely not lead to disaster, but in different contexts and situations, similar word use ignorance just might cause problems (or at least embarrassment).

This silly example is actually not that far from how reality works. One of the elements that sociologists have found as a requisite for establishing a profession is for participants to adopt their own language. The “techno-bable” that results allows those in the know to perform their functions faster with shorthand and keeps the outside world separate and often clueless. So knowing the proper use of words and their meaning is necessary to be considered an insider in any industry.

“You keep using that word. I do not think it means what you think it means.” - Inigo Montoya

As is the case in William Goldman’s The Princess Bride when Vizzini inconceivably keeps using a word without understanding its meaning, misuse of words can leave an unintended negative impression in the mind of the other conversant. Referring to something by a term that doesn’t apply is not only showing a lack of sufficient preparation on the part of the speaker, but requires the other party to perform the mental gymnastics of double think every time the inappropriately used word is uttered to use a mental “search and replace” procedure. In the heat of negotiations, a slip up in this extra processing could lead to trouble down the road.

And there are many different ways words can end up being misunderstood.

Lawyers are sticklers for the proper definition and use of words, for reasons. Writers should be too. Properly defined and understood words not only convey the right concept, but align everyone’s thinking along the same path. Vagaries invariably lead to misunderstandings or contentions. At best, they only slow things down. At worst, they could end things horribly.

In creating contracts the lawyers make certain that all concepts important to the deal are clearly defined within the confines of the document. It isn’t a requirement that the terms in the contract have any relation to the outside world as long as the parties to the agreement understand the meanings as defined by the contract. My favorite example is a contract that specifies a delivery of “Pigs” by a certain date. The truck arrives at the appointed time and the handlers offload a dozen cows. The business owner is completely happy with the delivery and signs the receipt. Since both sides of the deal understood that the contract term “Pigs” was code for cattle, the contract was fulfilled as expected by the parties. The understanding between the parties was key to the contract’s terms and validity, not whether anyone else could understand it. (There’s an entire fact pattern that explains why this might occur and what it all would mean, but, you’d have to take a law school class to really get it all – or care.)

Script EXTRA: Producer Credits - The Pig Pile

In dealing with producers and studios, a writer needs to make sure that all the terms discussed in negotiations mean the same to both sides. Just what is expected to be included in a draft? A polish? When is delivery expected? What constitutes a complete delivery? Even though the terms being bandied about are familiar jargon, their specific meaning has to be understood in the context of this discussion otherwise misunderstandings could ensue.

Example, the term “profit” is often used. It is not unusual for a production company to have a different definition of what “profit” means that varies in multiple contracts for the same film with different parties. A director’s contract may define it one way. A distributor’s contract differently. A lowly writer’s contract may have the least favorable definition of them all. Getting a cut of the profit, gross or net, could mean vastly different things depending on your own deal and the definitions placed there.

And there are just as many words that can cause confusion that don’t mean anything else, really. The jargon used in filmmaking can take on a life of its own. Ask any lighting crew member on set how they first found out what a C-47 was and how important it was to the production. Meaningless words can be given meaning for many reasons. Sometimes those reasons could lead to a significant cost in the language of a contract if you’re not careful. Do you know the difference between VOD, SVOD, TVOD, and AVOD? Each is distinct, can offer a different dollar value for sharing revenue and – most importantly – can be separated from each other so that a deal that includes one won’t include the other forms of Video on Demand style. In modern negotiations leaving the wrong one out could end up costing you a bundle.

Of course, the meaning of words can change over time. And even the old, savvy negotiator has to keep abreast of those changes otherwise they’ll look foolish or cost their side money. Take for example the defined term in nearly every distribution contract, Deliverables. These are what the filmmaker has to supply to the distributor or other receiving party in order to have fully completed their side of the bargain. And its not just the completed film.

The term has been around for a very long time. Decades ago it likely specified a master release print and/or distribution negative on 35mm reels with or without magnetic sound tracks, accompanied by reel to reels of the audio both combined with dialog and separate music and effects tracks for foreign language dubbing purposes. And there would also be specific publicity materials requested as well, behind the scenes and production photography, bios and technical documents like music cue sheets, the entire dialog by frame number or time code (for subtitles) and a bunch of other, very specific things.

Eventually additional elements were added as the technology changed. Nowadays your film is suppled on a DCP, a specialized hard drive and file structure ready for theatrical release with many of the various needed elements incorporated within the files there (e.g. multiple language subtitles and dubbing.)

Some legacy deliverables still kick around. For a while you had to supply a digital beta video tape copy of your film for television distribution. That was in the days of standard definition television. In todays high definition and UHD 4K televisions, that request is outdated. But arcane requests like that might still linger in the deliverables section of the document you sign for distribution. Failing to provide a single item on that deliverables check list is grounds for holding up your payment for completing the contract. And some of these unneeded formats might cost an arm and a leg to create today. A single film print can cost upwards of $4,000. Whereas a DCP can be created for a couple hundred dollars.

Being aware of the words used to define the deliverables and striking those outdated or unnecessary ones can save you time and money, if you know what it all means.

Then there are industry words that have multiple meanings even within the industry. When you encounter those you really have to be a stickler to make sure that both parties are discussing exactly the same meaning, otherwise it can lead to chaos and disappointment.

What’s a “sale”?

Writers are always in search of a sale. But what does that word actually mean in the context of your script? Many writers loosely use the term when talking about someone paying them money for their work. But, as we’ve pointed out before, there’s a difference between an option and a purchase. Both of which could be colloquially referred to as a sale, since money is given to the writer. But if a writer flippantly goes on social media and touts that they’ve “sold” their script to a big name producer, then months later it is learned that that writer is once again shopping that same script around, who’s looking foolish?

Script EXTRA: How to Sell a Screenplay

If the first “sale” was actually an option, it all makes sense. Otherwise the outsider might assume that for some reason the first buyer wasn’t able to make the film and, by savvy terms in the writer’s deal, the rights reverted back to the writer. A completely different situation than an un-executed option. The lapsed option looks bad for the optioner, unable to find the money in the short time period of the option to get started. The reverted sale means that the buyer had full rights in their hands and something prevented the production from succeeding so badly that the producer had to give the writer back his work. Was what went wrong inherent in the script itself? One is left to wonder.

There are many other places where this industry holds the same or similar terms to mean separate things. Like Cannes meaning both the Cannes Film Festival and the Cannes Market. Conflating your participation in one as if it were participating in the other is a sign of bad judgement. Those in the industry that know the difference will look askance at someone who uses language that loosely and will not be fooled.

Careful, accurate language will always do you better than making a guess or being intentionally vague or misleading. As always, it depends. So use your words wisely.

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