by Linda Seger
Although producers and writers often go after these stories hoping to sell them as television and film projects, studios and networks don’t always jump right into the bidding war. They understand the complexity of docudramas and the possible pitfalls. They are particularly wary of stories where the ending is not yet known, particularly if a trial has not yet been held and the verdict is not yet in. In these cases, there’s no way to know if it will make a good dramatic story with a strong climax.
Many docudramas are about events that occurred five or ten years previously, because it might have taken five or ten years to know the ending. Usually a story ends with a strong climax that resolves the issue, such as an arrest, but in addition there may be an epilogue that gives you further information, such as “He is now serving a twenty-five-year sentence in San Quentin Penitentiary” or “She is now totally recovered from her disease and is happily married, living in Carmel.” You need to know the ending. Although your story may move dramatically and logically, the ending can reverse everything you’ve done. The ending can change the theme, the choice of characters, even the concept that sold the story in the first place.
Sometimes writers and producers make the mistake of not obtaining all the rights they need. If one person holds out on his or her rights it can destroy a project, particularly if that person is an essential character in telling the story. Occasionally somebody is asked to cooperate on a project without signing an option agreement. You start writing the script, only to have somebody else tie up your subject’s rights, making it impossible for you to proceed with this aspect of your project.
Sometimes a writer or producer ties up all the necessary rights and then realizes that there are implicit legal or dramatic problems in the story. Such problems can be prevented by adequate research and story analysis.
USING A STANDARD OPTION CONTRACT
It is always preferable to work out an option agreement with the assistance of a lawyer. But in case you cannot afford one, a model option agreement follows. Deals have been made with a simple form such as this, and if you feel you can trust the person and are willing to take a risk, this is workable.
Let’s say that you are Mary Jane Smith, a writer-producer who wants to option John Doe’s true-life story about his experiences flying in Korea. You want to pay him $10 for the initial agreement, which can be renewed every year for $250. The purchase price if the story becomes a film will be $15,000 for his rights. The option will begin on June 15, 1992, and can be renewed every year after that.
John Doe
Main Street
Anywhere, U.S.A.
Mary Jane Smith
Sunset Boulevard
Hollywood, California
This will confirm the understanding and agreement between you, MARY JANE SMITH, writer-producer, and myself, JOHN DOE, as follows:
1. John Doe is the sole and exclusive owner of all rights, title to, and interest in and to the story of John Doe’s Experiences in Korea (“the Story”) and all the incidents and occurrences in it.
2. For and in consideration of the sum of Ten ($10.00) Dollars payable to John Doe upon the signing of this letter, and for other good and valuable consideration, the receipt of which is hereby acknowledged, John Doe hereby grants to Smith an irrevocable right and option to purchase and acquire all theatrical and television motion picture rights, literary rights, and all affiliated rights relative thereto and to the Story on the terms and conditions set forth herein.
3. This option shall commence as of the date hereof and shall expire on midnight, June 15, 1993, unless extended pursuant to the provision of Paragraph 4 hereof.
4. This option may be extended for an additional year to June 15, 1994, upon the payment by Smith to Doe of the sum of Two hundred fifty ($250) Dollars at any time on or before June 15, 1993. (The period of the option and any extensions thereof is hereinafter referred to as the “Option Period.”)
5. The Option shall be exercised by written notice signed by Smith and delivered personally or by certified mail to Doe on or before the end of the Option Period to the following address: John Doe
Main Street
Anywhere, USA
6. In the event the option is exercised as aforesaid, Doe shall be paid the full and complete purchase price for the work in the manner and to the extent provided for in Paragraph 7 hereof.
7. In the event the option is exercised and a feature-length theatrical or television motion picture based upon the story is actually produced and made by Smith, then Smith agrees to pay to Doe the sum of fifteen thousand ($15,000) Dollars (purchase price) on the first (1st) day of commencement of principal photography or taping, as the case may be.
8. During the option period, Doe shall not assign or encumber the story nor make any commitment with respect thereto inconsistent with the terms hereunder.
9. If Smith fails to exercise the option as aforesaid, all of Smith’s rights hereunder shall cease on the expiration of the option period.
10. If Smith duly exercises the option as aforesaid, then Doe agrees to execute whatever additional documents Smith may deem necessary in order to properly evidence and acknowledge that Smith is the sole and exclusive owner of all rights, title, and interest at and to the theatrical and television motion picture rights, literary rights, and affiliated rights, in and to the story.
11. This agreement and option is fully assignable by Smith and shall be binding upon and insure to the benefit of her respective successors and assigns and the heirs, executors, and administrators of Doe.
If the above is in accord with your understanding of our agreement, please indicate the same by signing this letter in the space below.
Sincerely,
HOW TO FIND A LAWYER
Your local bar association will be able to give you names of attorneys familiar with entertainment law. You can also ask an attorney you know for recommendations.
The cost of a lawyer will vary, depending on the complexity of the option and whether you need to get rights from several people. A simple agreement with one subject can cost between $1,500 and $2,500. If that’s more than you can afford, you might simply have an initial consultation with a lawyer before meeting with the subject, as I suggested earlier, and then use the basic option agreement from this chapter. If you sell the project to a studio or company, their lawyers will handle the more complex legal matters.
The option agreement will help protect you while you’re developing the project. When the project nears production, you will need another form of protection—Errors and Omission Insurance.
ERRORS AND OMISSION INSURANCE
Errors and Omission (E & O) Insurance is coverage that protects the studio or network from lawsuits for defamation, invasion of privacy, violation of the right of publicity, or violation of property rights. Most readers of this book will not need to concern themselves with this insurance, but if you are doing a low-budget independent film of an adaptation, you will need to have it in order for your film to be distributed by any major distribution company. If you are selling rights to a production company or studio, you will begin working with the insurance carrier after you sell your project.
As the writer of the project, you won’t be buying the insurance—the production company or studio will. But you must provide them with the information to prove that all legal requirements have been followed.
The application for this insurance requires you to disclose whether any real persons are depicted either fictionally or factually and whether any source material was used without permission, and truthfully to describe the history of the development of the script.
If a studio is sued, the E & O insurance pays for the litigation, according to what kind of policy they have. They might have a blanket policy for all pictures, or specific insurance on one picture. There might be a high deductible, or the insurance may or may not cover attorney fees. It might pay some defense costs, but not all.
If you’re doing a personal story about a nonpublic event, there�
��s a certain amount of leeway for fictionalizing certain elements, provided you have subjects’ rights. If you’re doing a well-known story, dramatic license is more restricted. If you don’t have all the releases you need, you are even more limited. Your position will also depend on how complete the public record is, particularly if you are doing the project as a public domain story. People whom you consider public figures might claim not to be so, and you could be open to being sued as a result.
If you’re not truthful in your insurance application, all your insurance can be canceled. No script will go into development unless the script is reviewed. No problems will be overlooked.
To protect yourself and your project, make sure that you have an airtight contract, that you’ve acquired all the rights you need for the project, and that you’ve documented all information. Although you won’t be working with the E & O carriers until the script is moving toward production, you must be prepared for their questions as you develop the project.
AFTER YOU HAVE GAINED THE OPTION
If your option agreement for a book or a play gives you creative control, you can work with the material any way you want. You probably don’t want to lose the essence and spirit of the original, but you are allowed to make changes. Novels and plays give you greater leeway than the true-life story.
If you have optioned a true-life story, you must stay within certain parameters. Some are legal—if you don’t follow them you’ll be sued. Others depend on whether you are doing the film for feature or for television.
Although feature films based on true stories still need to follow certain legal procedures, legal requirements for films are less rigid than those for television, and many scripts have shown considerable creativity. Mississippi Burning was criticized for not really telling the truth about FBI methods for bringing the murderers to justice. Missing was a highly fictionalized account of a coup in Chile and how it affected certain Americans living there. The Long Walk Home was based on the Montgomery bus boycott, but fictional characters were put into that true-life situation.
The adaptation that poses the most restrictions for a writer and/or producer is that of a true-life story for television. If you’re writing a true-life story for television, you’ll need to follow other criteria, which are discussed in the next chapter.
10
WRITING A DOCUDRAMA FOR TELEVISION
Docudramas are a staple of television movies. Many of the highest-rated and most critically acclaimed television shows have been docudramas—including the Emmy Award winners Eleanor and Franklin, Friendly Fire, Edward and Mrs. Simpson, A Woman Called Golda, Peter the Great, and Roe vs. Wade.
Writing a docudrama presents a number of challenges since you must stay with the facts while still trying to create a dramatic story.
WHAT IS A DOCUDRAMA?
A docudrama is a dramatization based or inspired by a true-life story. A story based on a specific living person must be accurate. The writer must guard against defamation of character, misrepresenting or misinterpreting events, and all the other potential liabilities mentioned in the previous chapter. Docudramas that are “inspired by” true-life stories have much more leeway. These are based on a specific event, but are so fictionalized that virtually no one would recognize the particular people portrayed in the story.
When you’re writing such a script, you are allowed to make some changes and fictionalize some material. In chapter three I mentioned that people don’t live their lives in the correct dramatic order. Their relationships don’t always work dramatically. Sometimes you wish that there were fewer people in their lives or that they hadn’t done certain actions that contradict the theme you want to develop. As a writer of docudramas you have creative control over some of these situations.
THE NETWORKS AND YOUR DOCUDRAMA
When a project is submitted to a network, it will first go to the programming department. This department hears pitches (TV jargon for “fields proposals”), buys stories, and develops scripts. If you were pitching a project to the networks, you’d pitch it to a programming executive.
Once the network buys your project, there are three departments that must approve your script to make sure it fulfills all criteria for docudramas. The legal department checks to see that there’s a strong option agreement and that all necessary rights have been obtained. The errors and omission review makes sure that the docudrama will not lead to lawsuits. The broadcast standards and practices department reviews the script to make sure the story is truthful and that the public is not misled about events that actually occurred. Each network’s broadcast standards department has codified specific guidelines and rules for you to follow that protect you legally, but also give you the leeway you need to create a viable dramatic work. (See here for example).
Occasionally the broadcast standards department will insist on certain story changes, not for legal reasons, but because they feel a responsibility to tell the truth and not mislead audiences. Even if the legal department says that it’s all right to fictionalize some element in the script, broadcast standards executives might say that that particular piece of information is misleading and therefore needs to be changed. Many television executives believe that television has a particular responsibility to the public because television shows may be the public’s only source of information on the subject. If a TV docudrama claims to be the true story or based on a true story, it’s important that it really be true to the facts.
If a project is particularly problematical, the programming department might discuss it with broadcast standards before even buying it. Or they might begin the development process and then send the script to broadcast standards. It still must go to the legal department at some point in the process before it can receive the green light for production.
These television departments will distinguish between factual and historical accuracy and any inaccuracies that may give rise to legal problems. Every screenwriter probably wants his or her script to be accurate. That might be part of the screenwriter’s artistic desire. But there is also a moral or journalistic obligation to write an accurate script, even though a specific inaccuracy might not cause legal problems. And there’s the legal duty to write an accurate script that is legally invulnerable.
IS YOUR STORY FICTION OR FACT?
A writer or producer has to make the decision whether to present the story as nonfiction or fiction. Much of what you see on television is loosely inspired by an actual case.
The rights to a true story are often a stronger selling point for the networks than a story you have made up loosely based on facts. You might pitch a story as true, but the network might ask you to write it as a fictionalized account. Sometimes this happens because it’s impossible to get all the rights. Sometimes it’s too complicated to do as a true story. The decision to fictionalize it will depend, to some extent, on whether your story could have happened to a number of people or to only one person.
Earlier I mentioned Eugene Hasenfus, the mercenary who was shot down in Nicaragua. The incident was important because it led, indirectly or directly, to the Iran-contra affair. Let’s say that I wanted to do this story, but couldn’t get the rights I needed. I might decide to fictionalize his story by telling a story about a mercenary who was shot down in Nicaragua while delivering arms, was captured, held in prison, and finally was released through the influence of his wife. Even if I changed details in this story, I could be open to a lawsuit, because Eugene Hasenfus is the only person this has happened to. I might change his age, the kind of airplane he flew, or even change the country, but the story would still point to him.
You might decide to do a story about mercenaries flying arms not to Nicaragua but to “a Central American country.” Perhaps, through research, you have discovered there are about forty men between the ages of thirty and fifty who flew these kinds of missions, although none of them were shot down and captured. You research the different incidents that happened to these men, and choose those for your story that
have happened to a number of people. This would be fine. But if your character is shot down and captured, your story would now be identified as Hasenfus’s story.
It would be particularly difficult to fictionalize his story because there is a great deal of public knowledge about the event. We know what he did and didn’t do. We know the sequence of events. We know about his family (his brother hand-made the parachute that saved his life and his wife traveled to Nicaragua to try to free him). We know that debriefings followed. If you tried to fictionalize his story by adding a love affair with a woman in Nicaragua, and having him receive a medal from the government, he could still sue for defamation of character because that’s not what happened.
By trying to fictionalize your story, you would also be weakening it. Audiences like true stories. They like knowing that something really happened. And in this case it’s the specific events that make the story fascinating, not the generalized story of a “mercenary flying arms to a Central American country.”
Sometimes programmers at the network will say, “We would be interested in that if it were a true story, but since it isn’t a true story, we’re not.”
FOLLOW CHRONOLOGY IF POSSIBLE
When writing a docudrama it’s important to follow the correct chronology of events, if the chronology will influence the cause and effect of these events. If it doesn’t influence cause and effect, you can make some changes in the way you tell your story.
In a historical piece about World War II, you couldn’t reverse the order of events, e.g., you couldn’t decide that Poland was invaded after France in order to create a more interesting story. If, in a personal story about a woman’s life, she met her husband in France in 1942 but you would like to put this scene in the section that takes place in 1944, it may not be a problem, particularly if you have her rights. Probably nobody would object if you put a birthday party scene in summer, even though it took place in winter, or decided that a woman visited her grandmother in May, even though she did it in June—provided that it doesn’t upset an actual cause-and-effect sequence.