Q: A production company is planning to shoot a trailer for the script I wrote. They are paying all expenses for filming. When and how much should I expect to be paid for my script? And do I need a contract prior to filming?

A: It sounds like you took a spec script to a production company, they liked it and now want to shoot a trailer for it. This is unusual. Generally, the film is made before the trailer. Normally, if a production company likes the script, it tries to option the script (or buy it outright) or at least tries to get an exclusive shopping window during which it attempts to set it up at a studio. It’s unclear to me why this production company wants to spend money on a trailer without first tying up the script.

Maybe they don’t want to spend money for the option (but then again they’re willing to spend money on the trailer)? Maybe they’re relatively new and don’t know what they’re doing? Of course, you don’t have to be relatively new to not know what you’re doing — you just have to not know what you’re doing. And when you’re dealing with someone who doesn’t know what they’re doing, it’s hard to know what to do.

How much you should get for the script depends on a lot of factors, including your level of credit and experience, the budget of the overall production, the level of competition for your script, and how nice you were to the producer’s mother at brunch. Whether you want a contract before filming also depends. If you don’t have a contract, and the trailer looks amazing and every studio wants this project, then you’ll be in a position to make a good deal for yourself. And if the trailer is not so hot and nobody wants this project, then at least you still own your script. Of course, if the production company spends real money on the trailer but then you take the script somewhere else, the production company won’t be thrilled and could try to cause a problem (and depending on many other facts could succeed). You should know that in any event, the production company will own the trailer and you will not be able to use it (or any new elements in the trailer that are not in the script) for your own purposes; of course, you will continue to own your script until you sign a contract that says differently.

On the other hand, if you do a contract now, you may not get much money at all, and if in fact they don’t know what they’re doing, the contract you get may be so bad for you that you’d be better off without a contract. However, a contract, at least in theory, should make it clear who owns and does what, who pays who and how much, and what happens if nothing happens (i.e., what happens if the production company doesn’t do anything with the script for a certain period of time). It’s patently obvious, self-evident, and clear that clarity is always preferable to ambiguity, without any exceptions ever, except if ambiguity is beneficial to you and disadvantageous to the other side. Many contracts, of course, are not just ambiguous, they’re very unclear. And just you wait until someone who doesn’t know what they’re doing gives you a contract — it may not ooze clarity.

So let me recommend a concrete step-by-step course of action to guide you through this: it depends what you should get paid and whether you should have a contract now or later. If I tried to be less helpful, maybe I couldn’t be, but at least I couldn’t be any clearer, less plain, or more unambiguous even if I didn’t try not to be. (An editorial aside having nothing to do with this blog, and as a writer, you already know this: to make an important, essential, and not trivial point, string together a series of similar terms, words with same meaning, and synonyms (or negated antonyms)).

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.

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