Tuesday, November 26, 2013

Jeff Willis: "When an option expires, what happens to the writing you did for the producer?"

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.


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:


  1. Thanks for the great post! I do have a follow up question, though.

    What happens if you do manage to "resell" the original version of your script after having a "sterile version" at another company, and the new company gives you basically the same rewrite notes as the first one did? So if you do the rewrites as requested it will end up almost exactly the same as the sterile draft that you don't own the rights to?

    1. Calvin's got a great response to this below; the two best ways to address similar notes are to either come up with an entirely different "fix" for a similar note... or to advise Company B that there is a sterile script floating around there with Company A that addresses many of their notes. Some might argue that suggesting they contact another company would talk yourself out of that rewrite fee... but there's a lot to be said for being a team player and it's likely they'll probably talk to you about an additional rewrite or polish anyway since it's unlikely a company will be 100% happy with a draft you did for someone else.

  2. The way it was explained to me is that generally the second company will pay the first company all of the monies spent during their option period. This both eliminates any chain of title disputes, etc., as well as any double work on identical notes.

    For example... Company A options your script for $25,000 and then pays you $50,000 for a rewrite (forty rewrites actually, but that's another topic). $75,000 total out of pocket. Then, for whatever reason, the script doesn't move forward and the option lapses.

    Company B, who's been champing at the bit for your original, but now sterile, script, options/buys it. Then Company B approaches Company A and says we'd like to the material created during your option period. Here's the $75,000 you already spent.

    Then Company B would own the original work and all subsequent work done for Company A. The script can now move forward with additional notes and/or similar notes.

  3. What happens when a producer provides notes on a script they're only considering and haven't optioned yet? A number of producers do this before making any decisions on whether to option the script. If he/she passes on the revision, can the writer use that draft as there was never any agreement or exchange of monies?

    1. I'd say absolutely - until a producer options your work, they are just someone giving feedback. You have as much right to use their notes as you do feedback from a writers' group or reader. Of course, depending on who they are and what the situation is, it might be prudent to avoid using a specific idea from them to keep life simple, but giving notes before optioning smacks of getting work for free by dangling a possible option, and I say anyone who does that gets what's coming to them!

    2. You should always clarify BEFORE you start writing, but it's absolutely reasonable to make it clear that you will retain all material including the notes they give you in exchange for doing unpaid work on a script. And if someone balks at that, the easy response is, "I'm happy to let you own that draft and make it a work for hire... but that requires you paying me." Just make sure it's 100% clear (i.e. on-record, in writing) that you will own the results and proceeds of this kind of draft first. You don't want that guy coming around later and saying he's got a claim to that draft.

  4. Thanks for this, it's a tricky situation that I didn't really know the ins and outs of before. I was in it a while back when a company wanted to renew the option (having paid for it properly initially) for no further money. I told them to get lost, then belatedly realised that there wasn't anything I could do with the draft I'd written for them anyway - luckily they didn't call my bluff and came back with money, but it could have been worse!

    There are so many sticky situations like this, an inevitably it's writers that lose out - I often feel that the entire system needs an overhaul... though don't fancy the chances of it happening!

  5. Couldn't a simple solution be to include a line in the option agreement whereby the writer with retain all ownership of rewrites during the option agreement if the option should expire?

    1. You're unlikely to get the company to agree to include that line in the option agreement. Otherwise, why would they pay you for rewrites at all if there's a chance they could lose them and end up with nothing?

      The situation Claire was in (above) is a great bargaining position for that kind of ask, though. If the company wants a free option, that's a great time to say, "Okay, you don't have to pay me, but I want ____ in return." And I've seen people fill in the blank with all kinds of stuff including ownership of sterile drafts, extinguishing a lien against the project, adding a turnaround or reversion clause, etc.

      It's all about leverage. When you're first making the deal, you don't have a lot unless your name gets people in theaters. But be patient; through the development process there may very well be a point where you have a bit more leverage and those are the times where it's handy to remember this kind of stuff.

  6. I've just stumbled across this post and wanted to add a further dilemma.

    I've a TV series pilot script that's been optioned for a nominal fee. The prod co has requested rewrites based on their notes which so far I've been doing for free. Nothing major so didn't want to push for payments when the opportunity to network with directors and producers was on the table.

    However, the prod co are now requesting me to write another episode. They see it as two scripts will provide a stronger pitch than one, especially as I'm an unknown.

    I'm really uncomfortable with this situation. Firstly I don't think I should be writing another episode at this point (no broadcaster has requested it) and secondly if I do write it I should surely be paid to do so. And what would be the legal ramifications on this second script once the option runs out?