Q&A

Q:  For some 10 years now, I’ve been trying to penetrate the 10 foot thick wall called “unsolicited.”  How do I get through it? I have no agent.

A:  We can answer your question, but frankly, you may not like what we’re going to say.  Unfortunately, that 10 foot thick wall is probably as old as the Great Wall of China and is equally as impenetrable.  For those of you who haven’t had the pleasure of submitting a script to an individual, production company, studio or, god forbid, law firm only to have it returned to you with a letter classifying it as an “unsolicited submission,” we can give you a little background.


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Q:  I’m a writer/director.  I wrote a script that’s getting some traction.  I obviously want to sell it but on one condition:  I have to direct the movie.  I don’t think anyone else can do it justice…  A producer just presented me with an option agreement.  In our conversations, he agreed that I could be the director.  In the option agreement, it says that in the event the project receives financing and if a few other conditions are met, I’ll be engaged to direct the film on a “pay or play” basis.  I know that “pay or play” is a good thing so does this mean the producer is essentially agreeing that I’m the director?

A:  When I first started practicing entertainment law, I believed the term “Pay or Play” referred to the next hot NBC primetime game show, which I assumed would be hosted by Gallagher.  Fortunately for all of us, it’s not.  However, I’ve found that while it is a very commonly used contract term, and everyone wants it in their agreements, there is (as evidenced by your question) some confusion about the full extent of its implications.


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 Q: A producer has offered to option my script.  I’m just starting out so the numbers are pretty low (it’s a 12 month option for $1,000 with a purchase price of the WGA scale).  I’m cool with that but have one problem with it:  what happens if she turns around and sells the option to a studio for a lot of money?  I think that’s what she plans to do.

A:  Pat yourself on the back, my friend.  You just spotted an issue that is often overlooked in standard option agreements.  To answer this, let’s talk a little background.


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Q:  I was wondering if you could help me with a problem I am having with the rights to a short story.  I have been in touch with the relevant owners of the copyright and they have been told by the author’s estate they are not allowed to do anything with the rights to the story.  However, what I am wanting to do with the story is not a direct adaptation — but more of an “inspired by.”  What I am wanting to do is a 60 minute TV one off.  The only thing I am desperate to hang on to is the short story’s “twist” and elements of the central dilemma. Where would I stand with moving ahead with different character names, different structure, but retaining the twist and profession of the central character from the short only – crediting only “inspired by”?

A:  Copyright law doesn’t protect ideas – it protects the expression of ideas.  This is a simple concept in theory, but applying it to a particular situation could be challenging.  For several excellent, definitive, and thought provoking discussions of this topic, please see our blog


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Q:  I am a young filmmaker in Australia.  I have been chasing the film rights to a book written by an American author.  I have gone through the various publishers and have finally been given the name of the agent who represents the author in the States.  I am interested in knowing if the film rights to the authors book are available, and if they are, I want to know the correct pathway to go down to purchase them.

A:  To find out if the film rights are available, all you need to do is ask the agent (but you also need to do a lot of other things described at the end of this blog).  Assuming the rights are available and owned by the author, the next step is to negotiate the deal with the agent on behalf of the author to option the film rights.  (If the agent is a tough negotiator, you can try to cut him out of the equation and deal directly with the author; that’s a risky strategy that can backfire.  But don’t worry, there are other books available.)  And if you make the deal, the final step is to document the deal in an option agreement.  You could actually purchase the rights, as you suggest in your question, but it’s unusual to do so — the typical way to go about this is to option the rights.

 
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Q:  What are the legalities of using actors to portray real people in a film — a fictionalized bio-pic in which the main character is purely fiction but some of the other characters are real, both living and deceased?  For example, if Forrest Gumpdid not use actual footage but instead chose to represent those scenes using actors to represent the famous people?

A:  I really liked Forrest Gump when I saw it.  I’m pretty sure I even cried in it.  Now I hate it for some reason.  Maybe it’s just a general backlash against Tom Hanks’ haircut in The Da Vinci Code.  But let’s not get into that.

As to your question…we Americans generally think we all have a 1st Amendment right that gives us the ability to say what we please when we please, which has lead to such enlightening phenomena as Ashton Kutcher’s constant Tweeting (thanks a lot, Founding Fathers).  What is important to understand, however, is that this right of free speech is not absolute.  We are not always free to say what we please, especially when it comes to saying things about other people.

Before answering your question, a word of warning:  whether or not your depiction of a real person in a film can open you up to liability is not a question that has a definite answer.  It requires a fact specific analysis and even then, it may not be entirely clear how strong of a ground you stand on.  Also, you’ve got to remember that we’re dealing with people and people are nuts.  Thus, even if it appears you’ve done everything by the books and you’re legally justified in doing what you’re doing, you could still get sued by someone who didn’t like the way you depicted him or her in a movie.


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Q: Hello, I just read the article on what “defined net profits” is/means.  I’ve just signed a deal memo and am concerned with the wording…actual proceeds, no mention of gross or net (which may be a good thing).  Please let me know what might be next steps…

A: The basic difference between gross and net is the off the top deduction of expenses and fees in calculating net.  Speaking of off the tops, I just came from a bris.  It was a particularly good one.  Have you ever been?  If not, find one on Facebook or Craigslist, grab a few friends, and attend.  You’ll enjoy it.  Mohels tend to have a great sense of humor.

Anyway, your deal is probably with a production company that will not distribute the film itself.  And the term “actual proceeds” probably refers to the revenues received by the production company.  The blog about “defined net proceeds” focused on a distributor or studio definition of back-end, which is basically distribution revenues less distribution costs.  In your case, if in fact your deal is with a production company that will not distribute the film itself, you will be participating in the production company’s revenues.

 
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Q: I wrote, directed and produced a sci-fi action short that I think would make a great big budget feature. In the meantime, I have a friend who works for a small video game developer who absolutely loves the concept of my short and thinks it would make for a great game. I think it would be very cool and am thinking about putting together some sort of deal with my friend, but I don’t want to do anything that could jeopardize my ability to someday make a studio film based on my short. Should I just pass or do you think there’s a way I could make this work?

A: For you and your friend’s sake, I hope your short doesn’t involve a chubby, mustachioed Italian plumber with a love of coins who’s intent on saving a princess from mushroom and turtle creatures… in space. If that’s the case, we may have a problem. If not, there’s a chance you can make this work, but you’re right to be concerned about the possibility that your granting of rights to this video game developer could later affect your ability to produce a big screen adaptation of your short film.

First a quick note to those readers who think this may not apply to them because it involves video games: the majority of these issues would arise with respect to a production of any type of derivative work based on something you own, whether it be a video game, a book, a stage play, etc. so don’t be afraid to keep reading!
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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.
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Q: I’m in the process of wrapping up a movie. I just discovered that the title we’ve been using, and the title I love, was the title of a little known [major studio] film from back in the 70s. Can I still use the title?

A: Faithful readers, it’s so nice to be with you again. You may have noticed that the last few blogs from our Q&A team may have contained a few stale references. You may have asked yourself “why are these guys trying so hard to be pop culture relevant by bringing up A Prophettwo years after it was released?” Or “what’s up with the German broccoli references?” Or (for our more avid readers) “I’ve memorized every brilliant word written by these brilliant minds and I know I’ve seen this brilliant blog before!” Well, faithful readers, we were tired of watching all you independent documentarians and shoestring filmmakers line your fat pockets with millions based on our legal advice without seeing anything but pathetic adoration in return. We took a cue from our football and basketball brethren and decided a little work stoppage was in order. We’re transactional attorneys, dammit! If we can’t kill a good thing with overzealous unrealistic negotiating, we’re not doing our jobs! So we’ve been holding out… I’m happy to report we’re now banking 13 peanut M&M’s per blog (peanuts removed). (In reality, we were kinda just busy hanging out on the couch.)

In honor of an historic event like this (I love saying “an” before “historic”), I wanted to entitle this blog The Comeback – The Day the Screaming Stopped. But wouldn’t you know it, some jerk already took that title. Which so nicely brings us back to your question.
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