Q: A few months ago, I wrote coverage on a non-fiction novel for a production company. Now, I’m interested in writing a screenplay on the same subject matter. If I sell the script to another studio, can the production company sue me? Granted, it deals with a well-known aspect of Polish jazz [the novel’s subject matter has been changed], but truthfully, I would never have been interested in the project had I not been paid to write the coverage. Help me!
A: Help is on the way, dear fan of Polish jazz, but truthfully, the help you need is not legal (isn’t not legal same as illegal?). You’re not alone, nobody would be interested in this project unless they were paid, and not even then, and then not even. Okay, I suppose Polish jazz is more pleasing to the ear than Brazilian jazz, but only marginally. Polish jazz once heard once can’t be unheard. You can’t unbutter that toast. But this is just my personal, uninformed opinion, as are most of my opinions. In fact, and I’m disclosing attorney-client privileged information here, two studios are fast tracking big budget Polish jazz projects as we speak, although they focus on the lesser known aspects of it. So you’d better hurry up with yours.
Can the production company sue you? Of course! That’s what makes this country great, among other things. You can sue anyone anytime for any or no reason — beats settling grievances and grudges, axes to grind and bones to pick the way they settle them in, say, Somalia.
Assuming you’re not lifting parts of the novel, which might be frowned at by the copyright law, your ability or inability to write a script about Polish jazz depends on your contract with the production company (and your talent writing about an excruciatingly tedious subject matter).
A contract can be written or oral or implied. Unlike shoemakers without shoes, all my contracts are in writing, including with my brother, mailperson, and offspring. I have them all sign and notarize a simple work for hire and non-circumvention agreement, nothing fancy, $19.99 at LegalZoom. But few are like me, unfortunately. If you signed something with the production company, read it. It might answer your question. It might, for example, prohibit you from writing your own projects to compete with any project disclosed to you by the production company. Does that mean you can never work on your own Polish jazz project? If the production company has you cover a book about war, can you never work on your own war project? I don’t even know if the production company actually owns this novel or has it under an option. If it does, reasonable contractual restrictions on you might make sense, but if it doesn’t, restrictions like this might not make sense. Contract interpretation, like the practice of law in general, is not a science, nor is it an art. It’s a little bit of neither, just like the work of Mr. Brainwash.
An oral contract is just as binding, enforceable, and set in stone as a written contract (with a few exceptions, of course, as there is nothing without exceptions, except only this very axiom). If you orally offer me $5 for this blog, done! You can have all of them for $15, cash. So if you signed nothing with the production company but they sat you down on your first day and said the deal is you can’t use any of the projects you see here for yourself or develop competing projects, got it? And you said, cool. You probably have an oral contract. Just like with a written contract, it will still be open to interpretation and will depend on whether the production company actually owns or controls the Polish jazz novel.
If you have neither a written nor an oral contract, you may still have a contract. Yes, you may have a contract with someone and not know it. That would be an implied contract. When you pull up to a gas station and fill up your car you enter into an implied contract to pay for gas, even though you don’t sign a thing or say a word. When you order soup at a restaurant and eat it, you enter into an implied contract to pay for it, even if you’re illiterate and mute. If you request a well known and respected hit man to whack your boss, there is an implied contract that you will pay his or her usual rate for the service. When you’re paid to write the coverage, you might very well be entering into an implied contract that you won’t start your own competing project or at the very least keep the project confidential. Assuming you do have an implied contract with the production company, the terms will be murky, certainly until a court will imply them and tell you what they are.
Back to more about me. I’m an award winning blogger, hang with Banksy, and fly private, but my two and a half year old is already rebelling. She wants to change her last name to reflect her “heritage” (she wants to be Smirnoff de Cervantes). My ten months old’s first words are “bubble” and “**** you”. I hope it’s not a reflection on my wife, who spends the most time with him. Don’t have children, and if you have some already, give them up for adoption or drop them off at the nearest fire station. There might be an idiot who wants them. One is born every minute; no one knows where the others come from. No one knows where Mr. Brainwash came from, for example. This blog tries so hard to be the Bansky of legal blogging, but we’re Mr. Brainwash all the way, mutatis mutandis, hakuna matata, et cetera, et cetera.
This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.