Breaking & Entering: In Good We Trust – But Get It In Writing

Click to tweet this article to your friends and followers!

I was raised to believe that treating other people with kindness, respect and empathy was of supreme importance. Maybe this was partly how my mother, a child psychologist, kept her five children from getting into endless squabbles. That certainly worked. I remember when our friends across the street, a brother and sister, got into a vicious wrestling match over a pool float. I was horrified. That would never have happened in my house. But I think it was my mom’s intention to raise us to be good to the people we met in the world.

Surrounded by this attitude in early childhood lead me to believe that everyone behaved that way. Maybe that made me a Pollyanna or, like Anne Frank, I believed that all people are fundamentally good. But out in the real world, that's not the case, and as I grew up, I was confronted by the reality.

On the first day of Hebrew school the teacher, a little old lady – and by that I mean she was wrinkled and diminutive – gave us ice cream bars. In the tradition of Judaism, she wanted us to begin our studies with a sweet taste in our mouths.

Soon we were doing homework assignments. Our teacher would have us open our workbooks on our desk while she walked behind us, looking over our shoulders and barking out mistakes. This tiny woman, lording over a classroom of second graders, destroyed the pleasure of learning and left us cowering in our seats.

One day, towering over my friend Lynn while announcing her failures aloud, she made the little girl burst into tears. To me, this was incomprehensible. Upset, I turned to my mom. How could a teacher, of all people, make my friend Lynn cry? Why would anyone be so unkind? Now my mother had to try to help me understand that not everyone was raised the way I was. This was a much harder lesson to learn.

Even though I've been around long enough to see evidence to the contrary, part of me still believes that people are fundamentally good, at least until proven otherwise. I'm glad my mother didn't raise her children to be cynical and suspicious. However, when it comes to business, especially the film business – where we are all chasing after the illusive dream of getting a project off the ground, “Get It In Writing” is a far better policy than "The Golden Rule.”

When what looks like your big break – that long anticipated golden opportunity has finally arrived, we want nothing so much as smooth sailing from here on out. But don’t let excitement overwhelm common sense.

No one wants to make waves. But when it comes to contracts, fight that feeling and churn up a tsunami if necessary.

One of my former seminar and Summer Camp students wrote to me recently. Months earlier, he had asked my advice on his first paid writing gig. He’s a great guy. Smart, kind, dedicated to his craft. Some folks he knew wanted to hire him to write a script on a project they were working to finance. Naturally, he was ecstatic about getting paid to write. He trusted these guys, but felt they should have a contract. When he brought it up with them, they asked him to suggest how he would like the payments structured. RED FLAG! This sounded amateurish to me, not like producers who knew what they were doing.

You can bet I had something to say. “I am baffled that you need to figure out how to structure it, as I would assume they would make you an offer and you would REACT to it, not that the writer would SUGGEST how they would like the payment structured,” I wrote back. “GET A CONTRACT!!! GET IT SIGNED. GET AN EXECUTED ORIGINAL.”

I was skeptical about this deal from the outset, but unprepared for his update:

What are we so afraid of? That the other guy will be offended by our lack of abject faith and trust and walk away?

Anyone who isn’t willing and even eager to create an agreement covering how you will move forward on a project, IS NOT WORTH GETTING INTO BUSINESS WITH. They are clearly neither professional nor experienced.

This is one of those times when it’s better to be a “stupid dick.” My student says every time he has to work on the legal case, “If I had only...” rings in his head. He could have written an entirely new screenplay with the time he’s spent fighting to get what he should rightfully have received.

As a writer, your time and your energy are precious resources. Devoting time that could be spent writing to seeking legal recourse, and then spending still more of your reserves kicking yourself, is a high price to pay.

Here’s where the cautionary tale turns tragic. “In over a decade of writing, I have woken up nearly every morning excited about work. For the first time, I'm not excited. I'm pissed, and tired, and worn... And worse, I'm not working.”

When I asked my student if I could use his situation as an example, he was so eager for you to learn from his experience, he offered to write the article himself! He added:

P.S. As of last month, this writer is well into outlining a new project with my mentorship. We are both excited about the story.

So you are in search of a contract. Heading to a lawyer – preferably an entertainment attorney who is very experienced in these matters – is the smart move. A good attorney is a godsend. They are experts and can look out for your best interests. They can advocate, negotiate, even play hardball on your behalf, so you don’t have to get your hands dirty. There will be an hourly fee, and it can get pretty steep, although their expertise can pay for itself many times over.

When should you lawyer up? Check out Christopher Schiller’s ScriptMag column, Legally Speaking, It Depends. Just as his column’s title implies, every situation is different, thus generic legal advice is only useful in the broadest sense. Check out his column, Do I Need An Entertainment Lawyer? for some smart advice on when to get legal advice.

Not having the money to hire a lawyer at this stage – meaning before there’s a studio or financier involved and a guaranteed payday – doesn’t mean you can afford to go without a contract. Far from having a fool for a client, pretending to be a lawyer can be a smart move when it’s time to get it in writing.

The phrase boilerplate once referred to ads stamped into metal so the could be used again and again in a printing press. Today, legal boilerplate isn’t so very different. It includes terms and clauses that are used time and again in industry contracts. These terms are nonnegotiable. I have a few personal favorites.

Defining the Material: “The original concept for a feature length screenplay presently entitled ‘YOUR SCRIPT’ which, together with the title, themes, contents and characters and other versions thereof, is herein called the ‘PROPERTY.’”

Ultra Comprehensive Purchase Terms: “Owner hereby specifically irrevocably grants to Producer, solely, exclusively and throughout the universe in any and all markets and/or media whether now known and used, now known and hereafter used, or hereafter known or devised and used in perpetuity, all right, title and interest of every kind and nature in and to the Property.”

Translating un Petite French Phrase: “The interruption of or interference with the preparation, production or post-production of the Picture by reason of fire, flood, acts of God, strike or other labor disturbance, war, riot, governmental action, regulation or decrees, casualties, accidents, illness or incapacity of a principal member of the cast of the Picture, the Picture’s director, any cause or occurrence beyond Producer’s control, or other events which are customarily considered events of force majeure in the motion picture industry.”

Easy to see why lawyers, agents, managers, and studio business affairs execs start with tried true boilerplate. Who would want to recreate that morass of legalese time and again?

When you need to play lawyer, start with sample contract. Check out these and many more online resources:

The Writers Guild of America has loads of documents covering a range of situations from a Writer’s Collaboration Agreement to New Media under “Writer’s Resources – Contracts and Compensation.”

Film Industry Contracts is a blog that posts sample agreements

Done Deal Pro offers a solid option agreement

A Letter of Agreement

Until there’s a 3rd party involved, a Letter of Agreement is a good way to get a mutual understanding of the basic terms of how everyone will work together in a “free” option, when co-writing a script, or acquiring rights to life stories or properties to use as your source material. It’s more binding than a handshake, yet less than 50 pages spelling out how many tickets you will get to the premiere.

The goal is simple. According to Schiller, “A well-articulated and understood contract is best when it sets everyone’s mind in exactly the same frame of reference regarding the commitments and expectations of the deal.”

I’ve done a ton of these over the course of my career. While president of a production company, I was fortunate to get some great tutorials from my boss’s lawyer. I saved the producer money by drafting basic agreements with writers to option or to develop and then market their material. Her high-priced entertainment attorney came in behind me and made seemingly simple changes that packed a punch. For me, it was a cheap way to go to law school, but very instructive.

A Letter of Agreement should spell out the fundamental terms and lay the foundation for a more comprehensive deal to come if the project should move forward. Think of it as a variation on journalists’ “who, what, where, when, why and how.”

With the caveat “I AM NOT A LAWYER!” (my attorney, on reviewing this article, has suggested I add this disclaimer) at the very minimum a Letter of Agreement should spell out:

• Who – the individuals making this agreement; hereinafter known as “Writer,” “Producer,” “Manager” (the minute I use “hereinafter” I feel like a member of the bar)

• What – the material that is the subject of this agreement – screenplay, short story, novel, article, life rights – hereinafter known as “Property”

• How – the manner in which we are working together – an option, a purchase, or a free option in which we develop the material together. Is this a project the parties are co-writing?

• When – the commencement and expiration of this agreement

• And then – terms for extending this agreement and who decides – mutual or at one party’s discretion

• Credit – spell it out for now, you may be angling for a producer credit as well as a writing credit – if the film gets made with multiple writers ultimately it could be up to the WGA

• Fees – option price, extension price, purchase price. If the purchase price is not specific, then get a floor and a ceiling based on a percentage of the budget

• The end – an exit agreement -- generally the parties agree to walk away at the end of the rights period or by mutual agreement

• Signature spaces with dates for all involved – “Acknowledged, Agreed and Accepted By:” followed by spaces to sign on the dotted line

I have a few nice touches that I have developed over the course of my years as a student at Mark’s School of Law. Often there are terms that cannot be determined within the scope of the agreement. For instance, what kind of credit someone will be given on a project by the yet to be determined buyer. We can promise to ask for what you want, but not to deliver, as it’s up to the buyer. “Best efforts” is subtly stronger than “a good faith effort.” I like to add that the agreement will be “automatically extended by the duration of any negotiation” with a 3rd party. This keeps one person from holding the other over a barrel by renegotiating under duress. If this is a partnership agreement, remember to spell out the terms of how Profits and Losses will be shared – from income to expenses.

I have one superstition about Letters of Agreement. If it goes beyond one page, people will feel overwhelmed and decide to lawyer up at an early stage. Keep it simple, yet clear and concise. And yes, I have created some agreements with mighty skinny margins to keep from breaking this rule, but it works.

Words With Friends

You might think that there is absolutely no way that you need to protect yourself from the person you are working with. Perhaps they are your sibling, your spouse, or your best friend since kindergarten. My response is, “Would you like that relationship to continue?” While “Let’s Call The Whole Thing Off,” makes for a charming Fred and Ginger dance number, on roller skates to boot, real life is seldom so smooth and well-choreographed.

The fastest way to unravel a relationship is to go into business with friends and family. The best way to preserve that relationship is getting it in writing. Would you rather decide who gets top billing now, or when you and your partner have each taken twenty paces and are about to spin around to shoot each other over “po-TAY-to,” versus “po-TAH-to?”

Don’t tell me that you’ve each sworn on a stack of Bibles. Take an oath on stack of pancakes. At least that way, when it all goes to hell, and you’re depressed, frustrated and angry, you can console yourself in their maple syrup-coated goodness.

Money changes everything. Even the most enduring friendship can be ground to dust when the pot of gold is sighted at the end of the rainbow.

If, somehow, you have read this far, and I have failed to convince you to never, ever undertake a film industry collaboration of any kind without a getting it in writing, I offer up one last cautionary tale. A personal one.

It’s not easy to admit, but the inspiration for this column was my “partnership” with a long-term colleague and friend, who I had worked with on numerous projects over many years. When money is involved, people may well have a different definition of “partnership.” That doesn’t necessarily translate to 50/50 in everyone’s personal dictionary.

It’s easy to give good advice. It’s hard to follow it. I could make excuses based on the specifics of the situation but truthfully, I should have known better. Just like my student, failing to get a simple letter agreement ultimately blew up in my face.

I wasn’t the only person to get hit; the fallout was everywhere, not merely impacting me but many others, spreading far beyond what I could have imagined in my wildest dreams. It cost me a lot of money, a great deal of time and dumped a ton of stress and upset upon my life. It destroyed the friendship and another project to boot.

Learn from my mistakes.

Getting it in writing at the outset may not be fun, it may not be easy, and it may keep you from

playing the role of the good guy. But in the end, everyone benefits from having spelled out the terms from the start.

Until you get it in writing, do not pass GO!

Related Articles and Tools to Help: