10 things every producer and writer needs to consider before negotiating a script writer agreement for film or TV
Once a producer has the exclusive rights to develop a project, perhaps via entering into an option agreement, the next stage of any film or TV project will be for the writer to create the script. For this, a contract between the script writer and the producer will be needed. To help you through the process, whether you’re a producer or a writer, I have compiled a list of 10 things you need to think about before you start negotiating a script writer agreement.
1. WHAT ARE WE TALKING ABOUT?
Sometimes the script is referred to as the screenplay, but this means the same thing. The contract between the producer and the script writer can interchangeably be called a writer agreement, screenplay writer agreement, writer agreement contract, or a script writer contract. The main thing to remember is that we’re talking about the contract that the producer and writer will enter into before the writer creates the script for a film, TV programme, or series.
2. WRITING SERVICES, DELIVERY DATES AND FEES
The writer agreement will state exactly what the writer will be writing, when they will be writing each draft, and how much they will earn at each step. Some questions to consider are: if the writer will write a treatment as part of the deal, how much will they earn for this? How many revisions of the script will there be, and when does each one need to be delivered?
Typically, the contract states that the writer will write a treatment, a first draft of the script based on the treatment, then a second draft. They will also usually have to deliver polishes and revisions based on the producer’s notes.
3. SCRIPTWRITER FEES
Typically, the writer gets paid in milestones. For example, they may get a portion of their fee on delivery of the treatment, on delivery of the first draft, on commission of the second draft, then on delivery of the second draft. A final sum might then be paid on delivery of the last set of polishes and minor revisions.
4. CUT-OFF RIGHTS FOR THE PRODUCER
Some writer agreements will only guarantee the commission of the treatment and first draft. This is because the producer might want to stop working on a project (if they don’t get any traction with third parties for further funding, for example) or because they might want to hire another writer, if they are not happy with the first writer. In these cases, the producer has the option to ‘cut off’ the services of the writer, meaning that the producer does not have to commission the second draft, and the writer would only earn the fees agreed for those initial milestones, and not the rest of the fees payable on commission and delivery of the second draft of the script.
5. PRINCIPAL PHOTOGRAPHY PAYMENT FOR THE WRITER
If the writer is kept on for the entirety of the scriptwriting process, they will usually be entitled to a lump sum upon commencement of principal photography. This is calculated as a percentage of the final budget for the film or tv programme, typically around 1.25%. The writer and producer will usually agree a ceiling and a floor to this payment to ensure that the writer will get at least an agreed minimum payment and not more than the agreed cap.
6. NET PROFITS FOR THE WRITER
In addition to the fees that the writer will earn whilst working on the script and the principal photography payment, the writer will be entitled to a net profit participation. This clause generally states that the writer is only entitled to these net profits if they are the sole writer on the project. If the producer exercised their right to cut-off (see point 4 above), then the writer will get a portion, but not all, of their net profit participation, as will be agreed in the contract. Usually, the reduced net profit participation will be pro rata in proportion to the number of writers on the film.
7. UNION/GUILDS
It is important to establish whether the writer is a member of a union or guild. If they are, then the terms of their union or guild agreement may have to be incorporated into the writer agreement, which will impact the minimum fees to be paid, and the terms by which the producer may acquire the rights to a script. The terms vary between different guilds and unions, but need to be considered from the beginning if the writer is a member of any.
8. LEGAL RIGHTS IN THE SCREENPLAY
Unless there is a guild or union preventing full buy-out of rights, the writer agreement will usually state that all rights to the screenplay belong to the producer. The producer will be able to assign the rights to a third party, such as a financier or another production company, but will usually still be under an obligation to pay the writer the agreed fees themselves.
9. WRITING CREDITS
If the writer is the sole writer for the project, then they will be entitled to a ‘written by’ credit. The producer and writer usually agree whether the writer will be entitled to a credit on a single card, or whether the card will be shared. In films the writer tends to get a credit on a single card, whereas for TV projects the card is more likely to be shared. The writer will also be credited in the end titles.
10. SHOULD YOU USE A WRITER AGREEMENT TEMPLATE?
In short: no, you should not! Neither the writer nor the producer should rely on a template that was not drafted by a lawyer for the specific project that they will be working on together as the writer agreement will need to correctly reflect the commercial terms that have been agreed between the writer and the producer. If those terms are not contracted correctly, this is likely to complicate matters further down the line and the risk of a disagreement between the writer and the producer during the writing stage can easily be avoided by investing in a lawyer.
I hope that helps the process involved in drafting and negotiating a scriptwriter agreement . If you have any further questions or want to talk further, comment below or write to me here for a free consultation.