Essential new blog: Jeff Willis's All Writes Reserved

You can find a lot of opinionated blowhards like me telling you how to write your script, but there aren't many resources for people who need answers for the more business-oriented questions. I'm talking about the legal details of option rights and how spec sales actually work. Well, worry no more. Friend-of-the-blog Jeff Willis has started a new blog devoted to these topics called All Writes Reserved.

If Jeff's name sounds familiar, you've probably seen some of his tweetstorms, some of which I've archived elsewhere on this site, such as Creative Rights Advice for Screenwriters.

His most recent post this week covers the topic of "Sterile Scripts" - drafts written while under contract to a particular entity.

What happens to those drafts written while the work was under option?

Remember that the script is legally not owned by the writer during an option period; it’s owned and under the control of the company. If writing services are included in the deal, those services are most likely in your contract as a work for hire, meaning that in exchange for the money you’re being paid, the results and proceeds of your writing are owned by the company that’s paying you (i.e., you don’t own that draft the way you own a script you wrote on spec).

Think of it like an artist who’s commissioned to do a family portrait. The money is what the artist receives in exchange for the work. He doesn’t then also get to keep the portrait after he’s done; the portrait belongs to the family that paid him to create it.

The same is true of drafts and rewrites and polishes that the company is paying a writer to perform. Even if the rights to the original script are returned to you, those drafts you wrote for the company aren’t. Those drafts then become sterile scripts… a draft of a script that the company owns but cannot produce because they don’t own the rights to the underlying material (your original script).


Among other topics he's covered are:

Power dynamics in negotiations
Submission Releases
Conditions Precedent
Non-guild Deals
Quotes
Script Sale Breakdown
Intellectual property

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.

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:

Jeff Willis's Creative Rights advice for Screenwriters

If you follow me on Twitter, you've probably seen me retweet quite a bit lately 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.

Jeff has recently begun doing long Twitter lectures of DOs AND DON'Ts.  There's some very useful information there and I hate the thought that the ephemeral nature of Twitter means that it will quickly be difficult to find without doing much legwork.  So I reached out to Jeff and asked if he'd allow me to post his advice to writers about knowing their creative rights.  He was more than willing, so I'm reprinting them here, with the only difference being that I have reformatted them into paragraphs.

Jeff also did a fantastic Q and A over at the The Black Board forums.  It's worth a look.  Follow him on Twitter. You won't want to miss out on other great advice like this.

WGA CREATIVE RIGHTS

Writers, are you a member of the WGA? If so, know your creative rights.

Such as:

A prodco can’t distribute critiques/synopses of your script to outside companies w/out permission unless they already optioned/bought it. (Except for companies with whom they have a business relationship… first look deal, financing arrangement, etc.) Don’t waive this right lightly, and definitely don’t do it unless you’ve seen and approve of the coverage they’re sending. You have the right to restrict how much a company can shop your material around by providing the prodco with written notice.

It’s a $750 penalty for each party the prodco submits to outside of your written instructions. That said, don’t be a jerk about it. No prodco is going to deal with a writer who wants approval over every submission they make. Find the middle ground. Know that you can prevent them from blanketing the town, but also give them freedom to do their job. And once a prodco options or buys your script, they can send it to whomever they please.

If you option/sell your work, you have the 1st opportunity to rewrite. DO NOT WAIVE THIS RIGHT. A. It’s money. B. Your fringes depend on it. If a prodco wants to replace you, they’re supposed to meet with you first to discuss whether you can find a way to stay on the project. If a prodco changes an element (hires a director, attaches an actor, etc.), they have to give you 1st opportunity to address script notes. In other words, a director can’t come on board the project and hire their own writer to address their notes without first giving you a shot. This right expires three years from the date you turn in your final set of revisions, unless you negotiate for longer/no expiration.

If you’re asked to pitch something, you are allowed to ask the prodco approx. how many other writers are also being asked to pitch on it. Prodcos are supposed to notify you if a writer is hired to rewrite you. Prodcos are also supposed to provide you with a list of previous writers on a project before you start your revisions.

A title page should include ALL writers on a project. Don’t take off the names of previous writers even if you’re starting from scratch. Not all companies abide by all these rules all the time. Some are inadvertent omissions and some are deliberate avoidance of responsibility. And what the guild doesn’t know, it can’t enforce.

That said, choose your battles wisely. Don’t be that inflexible/difficult writer who runs to the guild every time there’s a problem. But don’t let a prodco walk all over you. Know your rights, know what you’re entitled to. Stand firm on things that are important to you. Remember that the threat of guild action can often be more impactful than actually taking guild action.

Everything I’ve posted  is free and  available on the WGA website: http://www.wga.org/subpage_writersresources.aspx?id=81 

Don’t be ignorant of your rights. If you’re a WGA writer, the guild has worked hard to negotiate an MBA that gives you certain rights. Know those rights. They give you power and they give you leverage. They keep you from being taken advantage of (more than usual).

Even if your deal is not a guild deal, understand what’s standard. If what you’re getting is not standard, ask why not. Call the WGA w/ any questions. The WGAw Contracts Department phone # is 323-782-4501. If you have questions, ASK THEM. They will help you. You don’t even have to be a member of the guild to ask questions. Anyone can call and ask them any MBA-related questions.

Don’t let ignorance prevent you from getting what’s fair. Don’t just go with the flow. If you’re uncertain about something, GET AN ANSWER. The guild isn't perfect, but it is there to help you. USE IT FOR THE RESOURCE THAT IT IS.

You don't have to be a WGA writer to start thinking about this stuff. Non-guild prodcos are mostly about the money and the fringes. There's no reason non-guild prodcos can't give you some of the basic MBA rights or use the guild MBA as a template for their deal.

Don't be afraid to ask for this stuff. Screenwriters SELL THEIR COPYRIGHT when they sell a script. You need to benefit from the deal somehow Guild, non-guild, professional, aspiring... wherever you are in your career, FIGHT FOR YOUR CREATIVE RIGHTS.