It Depends – The Underbelly of the Business of Hollywood – Pt. 1

There’s the legal, ethical practice and above board perspective of Hollywood. And then there’s the seedier side, the less than ethical, the notorious and unfortunately far too prevalent way business gets done behind certain closed doors. This two part series of articles will peek under the carpet shedding light on some of these situations so we can all be prepared to recognize them and know when to put on the brakes, turn around and speed like hell away.

Granted, this list is in no way comprehensive. Nor are every one of these circumstances equally bad. Some are definitely nefarious and either actually illegal, unethical or both. Others are unfortunately disadvantageous to the disempowered. Some aren’t even meant to be bad, they just turn out that way in the end. But what they all share in common is that they are situations you could find yourself in and could definitely end up on the short end of the stick if you aren’t careful.

We’ll start with a couple situations that are specific to writers, though the cautions alluded to can serve as warning signs for others in similar situations.

As you hopefully know by now, since I’ve been writing about the subject from the very early days of this column, no one can steal an idea. Ideas themselves aren’t marketable. They have no worth on their own and so you can’t “steal” something that doesn’t have a value. In so many “counter-examples” cited as, “but, I heard of this one time…” the facts are always about some other element of the situation, not just the idea. But the reason the concept of stealing ideas hasn’t been quashed completely by the facts is because a lot of situations FEEL like the stealing of ideas.

Sometimes the “theft” is confused with scènes-à-faire, where the set pieces and general setting have to be there to tell that type of a story (e.g. pirate movie has tall ships, pointy hats and peg legs.) When the genre requires it, it’s technically not part of the “idea” being pitched.

Sometimes the idea is vague and common enough that similar ideas are around at the same time, even possibly being pitched in the next room. This comes down to the unexplainable zeitgeist when we get several films produced that seem to be cut from the same idea (e.g. Armageddon (1998) and Deep Impact (1998).) The base concept – end of the world from an extra-stellar mass hurtling to our doom – is the same, but, the way those stories were told were completely different.

But it is possible for a producer to take a meeting and hear your idea within your pitch but not like the rest of the pitch (your particular take or just you.) That idea remains in their head and comes out sometime later as a story prompt for another writer to take a crack at. They may not even remember where they heard the idea from. And again, the idea alone isn’t worth anything. It’s the execution of that idea that they’ll pay money for.

So, to protect yourself, make sure that your execution of the expression of the idea (re: the script) is the absolute best you can make it. Give it your all in the pitch session to sell yourself as the best person to bring that whole concept to fruition. If the pitch fails, then move on. Let the idea drift away. It wasn’t your day. (Or you can pitch a competing studio and get your project into production quicker and then beat them to the punch. It’s worth a try.) Just don’t get so caught up worrying about the “theft” of your ideas to the point that you stop striving to be a writer, taking any idea, and running with it.

Similar to the above scenario is a misuse of the Open Writing Assignment system. If you are lucky enough to be asked to pitch an OWA you will be given the “idea” that they want to hear your take on. You do the research, put in the sweat equity to get the outline or treatment so that the story you come up with makes sense and go into the meeting with your plans on how the script will be written. If things are fair, the producer making the OWA call will listen to your pitch and, if they like what they’ve heard, give you a fair shot at the project.

But things aren’t always fair. There are issues about OWAs that can sideswipe a writer who doesn’t realize what they’re getting into. First off, it is often the case that the work you put into the project’s pitch is not compensated for. You’ve been invited, but, not yet employed to write. So, make sure that you’re comfortable with putting in the effort that you may never get paid back for. If they love your take, the remuneration for the pitch will be part of the contract to write the script (or it better be,) so there is potential to get compensated for the pitch. But that’s not guaranteed. Beware.

Also, find out, if you can, if there are other writers pitching on the OWA at the same time as you. Some producers have been known to invite a number of high-caliber writers to workshop the idea, intending to not employ any of them and to hire a cheaper writer to take all the great notes that came out of all those approaches and to make a script out of that. They get to pick your brain, and that of several of your colleagues for free. Technically, since they haven’t hired any of those writers and they’re not asking for script pages, they can get away with this, legally, if they’re careful.

You may not be empowered to find out, but, always ask who else is or has been working on the project in any capacity before you. The producers’ answers or cageyness in avoiding telling you may be a sign of just how little they value the writer, any writer. React accordingly.

Throughout the entertainment industry, even when you have a well-negotiated contract, some producers will attempt to circumvent what’s rightfully yours. Even a carefully negotiated contract with all the I’s dotted and T’s crossed may not be as bulletproof as it should be to get what you deserve.

The adage, “Make sure you get it in writing,” is great advice. Placing a contractual obligation upon the other party is key to having the right to require them to perform that duty. In most instances, that’s enough of an incentive for the other side to hold up their side of the deal.

But there is a small but not insignificant sector of the industry that takes the unethical and literally illegal strategy of agreeing to things, even in a contract, that they have no intention of ever living up to. Often these trolls are setting up shop at the entry points of the industry, when the other side has little or no bargaining power or finances to pursue their rights through legitimate means. They take advantage of the probability that they can ignore the obligations they tacitly agreed to with little or no consequence.

They bet that the other party can’t afford the time and money needed to enforce their rights. They’ve decided that they were never planning on doing business with them again in the future, so, burning bridges is not an issue. And they’re counting on the other party not having the contacts sufficient to sully their name within the industry to any great extent. Or they’re fly-by-nights, quickly taking advantage of one sector of the industry and then disappearing to reappear in a completely different sector and do it all again.

It’s bad business, but, there’s little you can practically do if you’re a victim of them. To avoid their traps, try to always deal with businesses that are well established and rely on a good reputation to continue in their chosen area. Get as many references as you can from others about their business practices. And if you can’t do this, make sure that you have ways of pulling out of the deal if they’re not living up to their side of the bargain. They often are quick to take you to court if you breach, but, don’t fear you being able to do the same.

Even taking every precaution, often we have to trust others beyond our ability to foresee whether the other side consists of such nefarious heels. If you do fall victim to these kinds of companies (and I have to admit, even I have sadly had this happen to me,) do what you can to recover, warn others and take it as a learning lesson so you can go forth more cautiously in the future.

As I’ve described before in this publication, non-disclosure agreements are rarely necessary in our industry and when they are used are even more rarely implemented properly. What NDAs are intended to protect are the equivalent of “company secrets” and only in so far as it doesn’t become an over-burden to those who are entrusted with those secrets. When they are appropriate NDAs should only protect the barest minimum necessary in scope, time, and persons so gagged and dissolve on their own terms at the moment the “secret” becomes public knowledge or the reason for the protection no longer applies. Unfortunately, NDAs have become blunt tools used by the unscrupulous to bind and gag far too many far too often.

In all my years of practice, I have seldom found a true need for an NDA within the context of filmmaking. One use within the industry that might be suitable is within the context of a reality competition show that is pre-taped and strictly limited to not revealing the outcome prior to the airing of the episodes thereby impacting the audience’s incentive to watch the whole series. But even in this legitimate context I often see the NDAs written too broadly in scope and for expansive periods of time beyond the necessity of protecting the show.

Most of the time, even when not attempting to strong-arm the other side, NDAs are strongly unbalanced in the obligations between the parties. Often the burden of silence is crippling on the one side for an inordinate amount of time, requiring extreme diligence to not unintentionally break. The consequences of breaching an NDA can be written to be extremely severe, far exceeding the actual harm the outing of secrets would cause. For example, one NDA for a reality show I read about whose top prize was only in the tens of thousands of dollars had a penalty for competitors revealing the outcome that would cost them multiple millions of dollars for even a slip of the tongue revealing too much.

Because of these abuses in construction, NDAs are nearly always looked on with great suspicion by the courts and often are thrown out as unenforceable or even illegal by their terms when challenged. But that doesn’t stop the industry from trying to use them for all kinds of purposes extraneous to their true value. And as we’ve seen in the #MeToo movement and in other cases, NDA-like conditions are often employed to silence telling the truth or revealing the untoward practices of the company or individual in exchange for a financial settlement. This is not only wrongly intentioned but if the actions to be covered up are actually illegal, the NDA is not enforceable in any court. You cannot legally contract someone to commit a crime or force them to assist in covering one up.

As a general rule, I walk away from the table if asked to sign an NDA before meeting with a potential film production and advise my clients and friends to seriously consider walking away from NDAs if presented with them in their dealings. Most of the time, the requests are a sign of ignorance of what an NDA is and how to really use it or worse, an indication that the other side wants to have far too much control over what you do and say. When they are necessary though, make sure that they are competently constructed, are minimalist in scope and time, and make sense for the extremely limited matter at hand.

To Be Continued…

In the second half article, we’ll cover areas such as the dangerous mix of enthusiasm and incompetency, the ego driving the bus and unusual (read: unfair) business dealing schemes. Until next time…