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Writing Agreements
• Option Agreements, Publishing Agreements, Chain of
Title, Life Rights Agreements
• Development/Co-development Agreements
• Development Financing Agreements
Underlying Rights
The screenplay for a film may be:
(a) original;
(b) based upon another work which is out of copyright; or
(c) based upon another work which is in copyright.
In each case, the producer will need to engage a scriptwriter
to write the screenplay under a Scriptwriting Agreement. In
the last case, the producer will also have to acquire rights
in the work upon which the screenplay is based and which is
still protected by copyright; this will be achieved under
an Underlying Rights Agreement.
A. Scriptwriting Agreement
B. Underlying Rights Agreement
A. Scriptwriting Agreement
This is a form of service agreement; the producer commissions
the writer to write and deliver certain materials and the
producer will make certain payments.
The following points will need to be dealt with in the Scriptwriting
Agreement:
1. Writing fees: these may be based upon the appropriate
fees under the Writers' Guild/PACT agreement but equally they
may be a specifically agreed sum. The producer will pay the
writer a reasonable fee in stages for actually doing the work,
with another significant fee becoming payable if, and when,
the film goes into production.
The producer may also agree to pay the writer a share of
the net profits of the film.
2. Work to be done: i.e. the work to be written e.g. treatment,
first draft, second draft, revisions etc, and the dates by
which each element is to be delivered. There are normally
reading periods for the producer following each delivery during
which the writer may be commissioned to write the next stage.
There is normally a right of "cut off" at each delivery
stage.
3. Warranties: for instance that the work will be original
in the writer, will not be defamatory nor will it infringe
the rights of others.
4. Credit: a writer will normally be given credit on screen
and in paid advertising subject to normal exclusions in the
form "Screenplay by [writer]".
5. Services: a writer's services are not normally exclusive
to a producer but they may become exclusive if the circumstances
require it.
B. Underlying Rights Agreement
The underlying work may be any existing copyright work -
for example, a novel or a play or even an existing screenplay.
The producer will normally take an assignment of film and
television rights for the full period of copyright in the
underlying work. If a work is popular, it is not unusual for
the author to be willing to give a licence only to make one
film based upon the underlying work which is exclusive for
a period of years, but which thereafter becomes non-exclusive
for the remainder of the period of copyright.
The following provisions are normally found in Underlying
Rights Agreements:-
1. Rights Assigned / Licensed: these will include the right
to adapt the underlying work into screenplays, and to reproduce
it in the film and copies of the film together with all the
other rights necessary for the full exploitation of the film
by all means and in all media.
2. Purchase Price: this is normally freely negotiated. Often,
the parties agree that the purchase price will be a percentage
of the agreed budget, with a minimum ("floor") and
a maximum ("ceiling"). If all film rights are assigned,
it is normal for the author to be paid additional sums if
a remake or a sequel is made or if a television series is
"spun off" from the film or the underlying work.
Again, it is usual for the author to receive a share of the
net profits of the film.
3. Warranties: for instance that the work is an original
work, solely written by the author, the person granting the
rights is the owner, the work is not defamatory nor does it
infringe the rights of others.
4. Credit: the Author will normally be given credit on screen
and in paid advertising subject to normal exclusions. The
credit would normally read "Based upon [novel] by [author]".
In order to keep his development costs down, a producer will
normally negotiate an option agreement for the film and television
rights with the author. The author will grant a producer an
option to purchase or take a licence of rights exercisable
within, say, a year for the agreed price. The option is invariably
extendable for a further year and sometimes for a third year.
There will be an option fee payable for each year of the
option. The option payment for the first year is normally
treated as on account of the eventual purchase price, whereas
option extension payments are normally in addition to the
purchase price.
The assignment document is normally negotiated at this stage
and is attached in draft form to the option agreement so that,
if the producer exercises the option, all that remains to
be done is for the parties to sign the assignment and for
the producer to pay the balance of the purchase price.
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