Today brings another guest post from Jeff Willis. Jeff is an executive currently working at the Weinstein Company in business affairs, but he's also a screenwriter/producer who co-written a feature due to start production next year, as well has having finished two commissioned rewrite assignments.
Aside from his earlier guest post here, Jeff has become known for his Twitter lectures of DOs AND DON'Ts. It's a good idea to follow him there because you never know when he's going to drop some knowledge. This week, Jeff touches on a topic that I have to admit, I had never even thought of discussing here.
WHEN AN OPTION EXPIRES, WHAT HAPPENS TO ALL THE WRITING YOU DID FOR THE PRODUCER/COMPANY?
As much as I enjoy tweeting succinct tidbits of information on Twitter (follow me @jwillis81), the fact is that some of the concepts and practices in the entertainment industry require more than just 140 characters to fully explain. Thankfully, The Bitter Script Reader has kindly agreed to host some of my more in-depth articles that examine screenwriting from a business perspective.
I thought I’d start off with a tricky situation, but one that’s probably familiar to a lot of writers out there who have had their work optioned. The question: What happens to all the work you do for a company if their option lapses and the rights to the project return to you?
When you perform writing at the instruction of a producer or production company, it’s typically as a “work for hire” situation. Just like a receptionist or a mechanic or an accountant, they are paying you to provide a service (in this case, creative writing rather than answering phones, fixing a car, or filing a tax return). Naturally, they expect to own the end result of those services they’re paying for, just like you’d expect to own a product once you’ve paid for it.
Where this becomes a little tricky is when the company no longer controls the rights because they didn’t renew or exercise their option. On the one hand, they paid you for a service and have a draft of a script they own as a result. On the other hand, they no longer control the rights to the project.
That’s when they have what’s called a STERILE SCRIPT.
They still own the draft they commissioned you to write (it was a work for hire after all), but they can’t do anything with it because they don’t control the rights to the property anymore. They no longer have the right to send it out, make further changes, sell it to someone else, hire another writer to work on it, etc. without your permission.
The important thing for writers to note is that you may have the rights back, but you don’t have any claim to what’s in that sterile script. The revisions made to the script in that version are lost to you because you performed those writing services for an employer.
Ultimately, that leaves you both in a bit of a Catch-22. The company can’t do anything with that sterile script unless they somehow re-acquire the underlying rights to the property from you, and you can’t do anything with that sterile script either unless you can somehow buy it from the company (typically for the amount of money you were paid to write it, plus interest) or otherwise get them to agree to let you have it.
This is why it’s incredibly important for a writer to be organized and methodical about keeping track of their work once they start dealing with option periods and revisions made at the request of other people as works for hire. There may very well be a point when a sterile script situation happens, and you want to be able to easily and efficiently go back and say, “Okay, here’s the latest draft before I did any revisions for that producer, so this is the one I completely control.” The last thing you want is to get the option back, set it up somewhere else, and have the first company come back around again claiming that you’re using the sterile version of the material that they own.
Once you start working with prodcos and performing works for hire, I would strongly recommend some kind of easily organized system for your drafts, such as including a date for each one in the file name itself and keeping a detailed log of the script notes you’ve received or been assigned when rewriting at someone’s request. Make it as easy on yourself as possible by being 100% clear about which material is owned by the company engaging you to write, and which material you can work with if the rights lapse and find their way back to you.
Jeff made an appearance this week on Josh Caldwell's podcast Hollywood Bound and Down. I've not had a chance to listen to it yet, but Josh really knows how to lead an interesting conversation. All of his interviews are worth listening to (and I'm not just saying that because I've already done his show.) You can download it here, or listen to the embed below: