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The Screenwriter’s Legal Guide

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Aspiring screenwriters take note: filmmaking is a business, not an art, and it is a sea full of sharks. Not to mention intricately worded contracts crammed with teeny-tiny fine print and twenty pages of defined terms. It is one thing to write a screenplay; it is another to actually sell it, and still another to understand what you’re signing when you do. And in a town that generally treats the writer as the lowest of the low (old joke: how do you know the starlet was a dumb blonde? Answer: she thought she could get ahead by sleeping with the screenwriter), it can be virtually impossible to navigate one’s way alone through the many possible pitfalls on the way to the screenwriter’s holy grail: “mid-six figures against high six figures.”

An agent can help, and so can a lawyer. In fact, you’re better off with one of both, and no book can be a substitute for either. But as Stephen Breimer writes in his Screenwriter’s Legal Guide, there is a simple purpose behind his book:

You may decide to leave it to the lawyers and agents to make decisions on your behalf. The problem with that approach is not so much that the decision may be wrong for you, but that you may be surprised.

That, in a nutshell, is what this book is all about: explaining the intricacies of Hollywood dealmaking so that budding screenwriters can understand the different aspects of the deal and look to protect their interests if and when they are able to reach the point where such information is helpful. Breimer – a former producer turned entertainment lawyer with a prestigious entertainment law firm – doesn’t suggest that you buy his book and forego legal representation (there might be those who would say he has a vested interest in recommending to the contrary, but those folks are likewise generally among those who see some sort of value in giving “free options” to fly-by-night producers – don’t trust ’em). The realities of the marketplace mean that having an entertainment lawyer assist you is frequently the best course of action, since they’re likely more comfortable with negotiation and the vagaries of contract language (even a slight change of wording can be significant, depending on the circumstances). But it is far better if you, the writer, already understand as much as possible about that marketplace even before consulting a lawyer (if only to cut down on the number of hours – at some hideous hourly rate – the lawyer will have to spend explaining it all to you).

Breimer’s book is an absolutely fantastic resource for aspiring screenwriters. Let’s put it like this: screenwriting message boards, be it at Done Deal, Wordplay, Zoetrope Studios or wherever else, are frequently packed with “newbie” writers who barely understand screenplay format, let alone the business side of the equation. There may be a few folks on the boards with some actual knowledge of “the business,” as they say, but frequently their statements are drowned out by a cacophony of essentially witless argument from people who know little, if anything. But the “newbie” writers are caught in the crossfire, worrying incessantly about such things as whether or not to capitalize sound effects in a script or the appropriate color for the card stock cover. And when it gets to the legal side of things, the “advice” is often all over the map.

Breimer starts with a basic premise: understanding the screenwriter’s “unique position” in Hollywood. He doesn’t quite put it this way, but one could characterize it as something akin to, “Bend over, this won’t hurt a bit.” As he writes:

Since the inception of the film business, studios have considered the screenwriter a disposable employee. Hired help. In the early days, studios employed stables of writers. These writers were exclusive to a particular studio and the studios were thus able to commission scripts using many contributors, each with his own specialty. A writer known for structure would be brought in to help if the problem was structural. If the problem was romance, a romance writer would come on board to write a love scene. Sometimes, a writer would be brought in for just one scene.

. . .

Unlike book writers or playwrights, who usually do their own writing and often have the last word (indeed, the Dramatists Guild for playwrights insists that the playwright must be the only writer unless he consents to bring someone else in), Hollywood writers are almost always rewritten, even the best of them, even those who sell finished scripts. Virtually no script sold is ever the final draft. The buyer of an existing script (commonly known as a “spec script”) usually assumes the same attitude as if such script had been commissioned from the start. Often, writers of such scripts are never consulted again, and invariably, they are cut out of the process of making movies. This reality constantly reinforces the attitude that writers are hired help.

When you understand that in Hollywood when a script is purchased the studio is “considered” to be the author of the script, you are better able to understand the way most contracts are drafted. Breimer then focuses on such things as option/purchase agreements, negotiable rights, so-called “contingent compensation,” and provisions to stay away from in script contracts. He covers commissioned scripts and the television marketplace, as well as a chapter on “protecting your money.” And in the context of those yet laboring to achieve a sale, he has three important chapters on understanding copyright law, works based on source material, and collaboration agreements.

All of those topics could prove important. I’ve seen a number of people who have collaborated with others on a script, blithely assuming that everything will stay as rosy as the first day they met. Well, as is frequently the case in relationships, it often doesn’t – but they never had anything in writing, so one party is making off with the script and telling the other partner to take a long walk off a short pier. As Breimer notes, “you should work out an agreement with that person before you begin writing.” He offers up a sample screenwriter’s collaboration agreement that might well take much of the sting out of the parting of the ways, especially in the context of aspiring screenwriters who think they’ve come up with the next blockbuster hit but don’t have the money to go through litigation with their erstwhile partner over the idea.

Similarly, his chapter on copyright might well help clarify the fears of some writers when they first see a submission agreement to most production companies or agencies, which frequently provide that the author understands that the company may have received other scripts with ideas “identical” to their own, and that they release any claims against the company in connection with that submission. As he explains the process, it may become clearer why this language isn’t critical, because “ideas” cannot be copyrighted: only the particular expression of an idea. As Breimer writes:

While this form does provide that you will be compensated if your unique material is used and that the producer will negotiate with you first before using it, it also bars you from a future suit based on concept. If you have only an idea, do not sign it. If yours is what they call a “high concept” idea and script, you probably shouldn’t sign it either. If you’ve written a script that doesn’t fall into that category and you’re not concerned about your idea being ripped off (it’s your plot that is really unique), then it might be the only way to have your script read.

. . .

The best path for you to follow is to flesh out your idea at least to the treatment stage (a “treatment” is a detailed outline of the plot, description of characters, and so on) or, better yet, write a first draft script. That way, you have copyright protection (tangible evidence of your original creation).

All in all, Breimer’s book provides a wealth of industry-related information. I especially appreciated his lengthy dissection of the notion of “net profits.” Many people will tell you that a share in a film’s “net profits” is essentially meaningless, but very rarely do they tell you why. To those on the outside looking in, it makes no sense that, say, Spider-man 2 isn’t going to turn a “profit” in order for someone’s “net profit points” to kick in. But as Breimer outlines in detail, there’s a very specific accounting methodology behind it, and it has nothing to do with having two sets of books. To anyone who wants to better understand the tricky currents of Hollywood deal-making, Stephen Breimer’s The Screenwriter’s Legal Guide is a must-have book.

Author’s Note: In addition to being a lawyer and aspiring screenwriter himself, the author wastes a considerable amount of time writing about a variety of topics over at Walloworld.

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