Writing for the Green Light

by Scott Kirkpatrick

  Appendix II

  The Non-Union Writer-for-Hire Agreement

  This agreement is specifically used for the commissioning of one’s writing services for a particular film or project. In short, a company likes your writing style (and knows you have the skillsets to get the job done), so they are offering you a one-time writer-for-hire gig for a project they need written. Perhaps it’s just for adapting an executive’s script idea into a treatment for internal review, or maybe it’s to clean up someone else’s script and make it more filmable. Regardless of the reason, when a small-to-mid-sized non-WGA- signatory company (which will be the most common entities you’ll be working with when first starting out) has a writing job to offer, they will hand over an agreement looking very similar to this one.

  So, for the purposes of all practicality, we’re going to assume the following scenario (which can just as easily be yours): A novice screenwriter, named Jessica Screenwriter, has successfully pitched herself as a young talent to a production company called Hiring Production Company, LLC. She has shown works that she’s written (her gold-mine genre-type spec scripts), which are commercial in nature, reasonable in budget, and follow the norms of what “working Hollywood” (and Hiring Production Company, LLC) is on the lookout to produce.

  Based on her willingness to contribute (and her sample spec scripts), Hiring Production Company’s readers and development executives have vetted Jessica’s talents. With a new production on the horizon, Hiring Production Company has now offered Jessica a $25,000 contract (go Jessica!) to write a screenplay for their new production, NEW COMMERCIAL FEATURE FILM.

  What follows is an example and overview of how her contract and how her general terms might appear:

  Non-Union Feature-Length Motion Picture Screenwriter Agreement

  DATE: As of ___________________, 20___

  COMPANY: Hiring Production Company, LLC

  123 Sunset Blvd., Suite 456

  Hollywood, CA 90028

  Tel. (323) 555-5555

  Fax (323) 555-5555

  Email: legal@production.com

  WRITER: Jessica Screenwriter

  789 Novice Street, Apt. 3D

  Los Angeles, CA 90028

  Tel. (310) 555-5555

  Email: Jessica@screenwriter.com

  (If Jessica Screenwriter has an agent, Jessica’s address will still remain as listed above; her agent’s company and contact information would be written as a second billing, meaning exactly where you’re reading this text block.)

  TITLE: “NEW COMMERCIAL FEATURE FILM”

  The Parties Hereby Agree as Follows:

  1. SERVICES—Here is a block of text that is overly wordy and legal-sounding, which essentially outlines that the Company above is hiring the Writer to render a Service (which means “to write”), to the best of the Writer’s abilities, a Screenplay—hereafter called “Literary Material”—for a feature-length Motion Picture tentatively titled “NEW COMMERCIAL FEATURE FILM”. The terms of the Agreement are considered non-exclusive (meaning Jessica Screenwriter can enter into other Writing Agreements as long as they don’t interfere with her ability to perform the Services required here) and shall be considered on a “freelance” basis (meaning the objective of her efforts are only to produce the script and that the relationship can continue or end at any time).

  2. LITERARY MATERIAL—Some more overly wordy language essentially stating the Writer needs to complete the following steps in order to be in good standing with the Company; these are stated as full breakdowns for each phase of the writing process and allow both the Writer and the Company to collaborate on the project, while ensuring the Company is getting (and paying for) a script it will actually be able to work with:

  (i) Outline for a Screenplay of the Title [the “Outline”] (meaning Jessica must write an Outline or Treatment);

  (ii) Provided Company notifies Writer to continue—(meaning Company can end deal at any time)—Writer will supply a first draft of the Screenplay (“Screenplay”) based upon the Approved Outline of the Screenplay (meaning that if Jessica turned in the Outline and the Company has heavily revised it, they are expecting a first draft which includes their changes);

  (iii) Provided Company notifies Writer to continue, Writer will supply a second draft of Screenplay (again including any changes made to first draft by the Company);

  (iv) Provided Company notifies Writer to continue, Writer will supply a rewrite of the Screenplay (this can mean a variety of elements, but at this point the second draft is most likely the skeleton everyone’s approved, but the Company might want certain characters more enhanced, etc., so Jessica should be prepared for a nearly full rewrite of the script at this point);

  (v) Provided Company notifies Writer to continue (see a trend here?), Writer shall supply a polish of the Screenplay (again, this can mean a variety of things, but it’s best to assume the worst by preparing for much more than a few small corrections).

  3. DELIVERY AND READING PERIODS—An overly wordy block that basically outlines your expected due dates and how long the Company has to provide you with a response. Important note is that while the Company is allowed to be a week or two late getting back to you, Jessica Screenwriter needs to be ON TIME, ALL THE TIME. It’s not a two-way street here. Generally, a Writer will deliver the materials on a set date and the Production Company will have anywhere between two weeks and thirty days to respond--but the Writer should always be accepting of delays on behalf of the Production Company.

  4. TERMINATION/SUSPENSION RIGHTS—Here the Company clearly states it has the right to fire the writer, terminate the agreement, or put the agreement on hold for any reason. At whatever point the Company decides to terminate or suspend is where its obligation to pay the writer ends. Again, this is not a two-way street… . The Company holds the power here because it has the money. But don’t sweat over this one, it’s a very standard clause.

  5. COMPENSATION—Provided Writer is not in Material Breach of this Agreement all compensation shall be payable as follows (meaning that if you’ve followed all the points listed and met all deadlines—which is why it’s really important to meet all of your deadlines—then the Company will be paying you based upon the following criteria):

  (For our purposes, we’re assuming Jessica has been commissioned to deliver a script for a flat $25,000 price—not bad!)

  (i) Upon Delivery (meaning they’ve approved it) of the Outline: $2,500 (which actually means the check will be printed thirty days after Jessica turns in the outline, BTW).

  (Doesn’t Jessica get a signing bonus? Not quite yet in her career… . Once she’s secured two or three scripts, then she can start requesting signing bonuses, but until then she’s still in the process of proving herself.)

  (ii) If applicable (meaning if they keep you on board—and this language is only for their protection, don’t think of it as mean), upon delivery of first draft of Screenplay: $5,000 (again, thirty days after Jessica turns in the screenplay).

  (iii) If applicable (again, if they still continue with the agreement), upon delivery of second draft of Screenplay: $5,000 (thirty days later).

  (iv) If applicable, upon delivery of the Rewrite (regardless of how in-depth the “rewrite” might actually be): $5,000.

  (v) If applicable, upon delivery of the Polish (and the polish could be a few tweaks, it could be starting from scratch): $2,500.

  (Have you been doing the math? If you’ve gotten this far, you’ll realize you’re now short $5,000 from the total $25,000. That’s because another major component of most flat Screenwriter deals is the “Production Bonus”—the amount of money the Screenwriter is issued on the first day of principle photography. Not all deals have this clause; some writers would prefer to just get paid for their work regardless of whether the film goes into production… . Why would that be? The Company isn’t paying the writer a “Production Bonus” to congratulate them on writing a script that’s now in production, they’re paying them so that the writer is “on call
” during the production in case the Company needs a last minute rewrite or polish to the script during the filming process.)

  (vi) Provided Writer is not in Material Breach (you know by now to follow the rules), the Writer will get a Production Bonus of $5,000 payable on the first day of principle photography. During the production period, if Company requires polishes or rewrites of the screenplay, for any reason, the Writer shall be considered available and on call for these services, which are to be considered already paid for… . Meaning they can come anytime with absolutely ridiculous requests.

  ROYALTIES: Overly wordy statement generally goes here all about a Writer’s royalties. It will essentially say: “If a Motion Picture is Produced which was Based upon the Literary Material herein referred to as a Screenplay (see how overly complicated they make stuff?) and the Writer is not in uncured material Breach of this Agreement, then Writer shall receive 1% of 100% of the Net Profits in Accordance to Company’s customary profits definition, attached herein as Exhibit 1, blah, blah, blah, in accordance to the laws of blah, blah, etc. So, you’d get $1.00 for every $100 the company earns right? Not quite… . You are entitled to $1.00 for every $100 the company reports that it earned. Essentially, most Companies (not all) will find a way to apply expenses against their earnings; and if there are no earnings, there’s no royalties to pay out. At this level, it’s not even worth the fight (most novice writers and producers spend all this time fighting these clauses without understanding how royalties in the real Indie Hollywood world work… . Do yourself a favor, think of the deal as a flat offering and move on—if you ever earn a royalty check, cash it ASAP! For the details on what 1% of 100% of Net Revenue looks like, feel free to review Exhibit 1 of this Agreement).

  6. SCREEN CREDIT—Again they’ll list here “as long as Writer is not in Material Breach” that they’ll give you a Written By credit for your work in the main credits, and that the on-screen credit is equivalent to the font and text size on screen as everyone else. If the writer chooses to be credited under a pseudonym, that can also be addressed within this clause.

  Note: Generally there will be a note dictating that this Writer’s Deal is NON-UNION and that it is not bound to the rules of the Writers Guild of America, but that it will follow the general principles of the WGA in determining writing credits, etc.

  7. RIGHTS—Here they’ll state that the Writer doesn’t own the script. It’s a work for hire, therefore the Company owns the script, they’re just commissioning the service of the writer.

  8. SEQUELS, PREQUELS, AND REMAKES—If, within a certain time period (let’s say seven to ten years) after the film, which is based on Jessica’s script, is released, a Sequel, Prequel, or Remake is desired, the Company must first go to Jessica before anyone else to make a deal with her. Since this was not a spec script out of Jessica’s imagination (the Company hired her to write the script and therefore the Company owns the content) they don’t owe her advanced money if they move forward with a Sequel, Prequel or Remake and she wouldn’t be owed any royalties… . But generally they would go to her first for alternative versions. This is why it’s really important to stay in good contact with all entities you’ve entered deals with, especially if you move and so on. This even would be very rare, but it’s generally outlined or brought up in an agreement. Also, according to WGA rules (and even though this agreement is a non-union agreement, it’s stated above the rules of this Agreement follow the WGA principles) Jessica would have to be credited since a Sequel, Prequel, or Remake would be based on a script, characters, or story/stories Jessica first wrote.

  9. INSURANCE COVERAGE—All companies have blanket/umbrella insurance policies to protect themselves in the event Jessica is plagiarizing material. Jessica wouldn’t be required to have insurance (called Errors and Omissions insurance on her work), but since this is a work for hire, all material she turns in would be insured by the Company.

  10. STANDARD TERMS AND CONDITIONS—Attached to this Agreement will be long list of definitions outlining each term, condition, or phase of this Agreement, so that anything disputed has a very clear and overly complex explanation.

  AGREED AND ACCEPTED:HIRING PRODUCTION COMPANY, LLC

  ______________________________By: _______________________________

  Name: JESSICA SCREENWRITERIts:

  SSN: 123-45-6789

  Standard Terms & Conditions

  To the Agreement by and between Hiring Production Company, LLC [“Company”] and Jessica Screenwriter [“Writer”];

  This Standard Terms & Conditions (sometimes abbreviated as “ST&C”) portion of the Writer Agreement is also found in almost any agreement that you’ll ever read, including those outside the movie business. It essentially is the opportunity for the hiring company to define—to their advantage, of course—how each and every possible definition should be viewed and/or seen by any third party should there ever be some kind of dispute. This is often the portion described as the “small print” and is actually the real nuts and bolts of any agreement.

  For ease and sanity, we won’t get as detailed as earlier in the “agreement” sample, but I will take a bit of page space to outline the common words that would receive a definition, and will provide some detailed breakdowns on the more complex terms, etc.

  1.Definitions: The following terms mean the following herein:

  (a) “Picture”—or “Motion Picture” or like words referring to a feature length movie;

  (b) “Name or Likeness”—Name, Professional Name, Photographs, Voice Recordings, or any other actual or simulated “likeness” to an actual person, living or dead;

  (c) “Person”—Important to note that in the legal world, a “Person” means any Corporation, Partnership, Joint Venture, Trust, or any other Business Entity as well as any Natural Person, meaning by default, both Jessica Screenwriter and Hiring Production Company, LLC are both “Persons” in the eyes of the law and within this Agreement.

  (d) “Writer”—In this case Jessica Screenwriter is the Writer, but it is the Person within this Agreement to which all of these definitions apply.

  (e) “Company”—In this Case, Hiring Production Company, LLC who has sought out and commissioned the Services of Jessica Screenwriter, and to whom all of these definitions protect.

  2. Screen Credit. A big statement on how Screen Credit shall be assigned and how it shall appear within the completed film. On studio films, this section can be huge, but on smaller indie films such as this one, this section is pretty much a cut-and-paste from the Writers Guild of America.

  3. Principle Services. A breakdown of the roles each “Person” (meaning the Writer and the Company) will play. Statements usually begin with “Writer shall blah blah blah” meaning Jessica Screenwriter needs to listen to and work for the Company’s needs and expectations. The Company shall honor its payment structure and deadlines listed herein, etc.

  4. Suspension. This is generally a full page of text about all the different reasons the Company might put this agreement on “Suspension” (meaning on hold until they get back to it later). There is usually a grace period of two to three weeks that an Agreement like this could be “suspended,” otherwise it’ll be considered Terminated.

  Common reasons will be:

  “Incapacity” (meaning the Writer’s inability to write (if Jessica has an accident) or if the Company becomes incapacitated (Legal issue, head of production has a baby, actress they based their presales on no longer wants to be involved, etc.)).

  “Force Majeure”—A French phrase found in all contracts stating things that are out of our control, like a flood, war, political protest, or any other unforeseen and unstoppable event.

  “Default”—When one of the Parties (Jessica or Hiring Production Company) is in breach of the agreement and the Parties need to settle the issue.

  Then several more paragraphs go into how a Suspension will be decided upon and resolved after the fact. Also, this will be the place where questions get answered such as how t
he “due dates” get adjusted, etc.

  5.Termination. Different from Suspension, to Terminate would be an all-out abandonment of the Agreement, cancelling out both parties’ responsibilities and obligations.

  We won’t go too heavy here, but there will be extremely well-phrased paragraphs that protect the Company but also guarantee that at whichever point the Agreement was Terminated will be the point where the obligations cease—which means if Jessica turns in her Second Draft of the Agreement and the Company decides to Terminate, she will get paid for the Second Draft. Also, if by WGA rules and principles, a certain portion of Jessica’s Second Draft is used in the final version of the Produced film, then she will receive appropriate credit. However, she would not get her Production Bonus, since the full reason for receiving a Production Bonus would be to have an on call writer during Production, which wouldn’t be Jessica.

  There will also be language about how each party can propose to end the agreement. The Company has more ability than the writer, but let’s say hypothetically the Company wants Jessica to write something she’s morally opposed to, she would be able to cancel the deal.

  6.Rights. In short, Jessica is being hired to write. She will not have any ownership of the script at all. For all practical purposes, she is producing a “work made for hire.” Any unique ideas, brilliant speeches, or amazing characters she creates are done so for the Company, not for herself. Granted, she will always be credited accordingly, but she doesn’t own anything … not even the Copyright. That’s why she’s getting paid (to render a service on behalf of the Production Company).