1. WHO IS ENTITLED TO THEATRICAL SEPARATED RIGHTS?
Entitlement to Separated Rights is subject to final WGA determination and may not be negotiated in a writer's individual contract.
In order to be entitled to Separated Rights on a theatrical motion picture, a writer must meet the criteria for both "Initial Qualification" and "Final Qualification." [Figure 1]
a. Initial Qualification -- A writer is initially qualified for Separated Rights in a theatrical motion picture by writing an original story (or original story and screenplay), including a complete and developed plot and character development. This original story must be written under employment or purchased from a "professional writer." 2 (Article 16.A.2.)
"Original" in this instance means that the material is not based on any material of a story nature that has been previously published or produced, or material acquired outside of WGA jurisdiction. This includes the writer's own material if it has been previously published or produced. The WGA does not cover sales of produced or exploited material. For example, the writer of a produced play who is later employed to write a screenplay based upon the play does not have Separated Rights in the screenplay. Any rights regarding the original play will have to be negotiated separately by the writer.
If the writer is assigned material of a story nature (not simply facts or an idea) from outside of WGA jurisdiction, then the writer still may be entitled to Separated Rights if:
- the writer creates a substantially new and different story, such that there is no longer any substantial similarity between the underlying material and the writer's material, or
- the assigned material is not available to the writer. While that may sound unusual, a prior film may not be available for viewing or a book may be out of print, or the writer may be assigned material not owned by the Company or the Company may not provide the material to the writer.
Although a writer's individual contract may designate an earlier writer's material as "assigned material," material written under WGA jurisdiction is not considered "assigned material" for these purposes. A writer who is not the first writer may still be eligible for separated rights.
b. Final Qualification -- If a writer who is initially qualified for Separated Rights in a theatrical motion picture, as described above, receives "Story by", "Written by" (i.e., story and screenplay credit), or "Screen Story by" credit on the motion picture, the writer is entitled to Separated Rights. (Article 16.A.3.) 3
If a writer is given source material of a story nature but nevertheless believes s/he has created a substantially new and different story, the writer must seek and receive a "Screen Story" credit in order to be eligible for Separated Rights. "Screen Story" credit is accorded when the writer is given source material of a story nature and creates a substantially new and different story. (Article 16.A.3.) Receiving the qualifying credit is known as "Final Qualification." (Article 16.A.2.a.(i), see also Theatrical Schedule A, Paragraph 2.c.)
One further note: A writer who has Separated Rights has Separated Rights in the entire screenplay, even those portions written by other writers. (Article 16.A.4.)
2. WHAT ARE THE THEATRICAL SEPARATED RIGHTS?
The theatrical Separated Rights are publication and dramatic stage rights. Through the MBA, these are licensed back to the writer. [Figure 2]
a. Publication rights. The writer obtains the right to publish the script, or book(s) based on the script, subject to a holdback period. The Company, however, has the right to cause a novelization to be published in conjunction with the release of the film, for the purpose of marketing the film. If the Company wishes to cause a novelization to be published, it must first approach the writer(s) who has Separated Rights to see if the writer(s) wants to negotiate with a publisher regarding the rights and services for the novelization. If the writer with Separated Rights does not want to write the novelization or fails to conclude a publishing deal within prescribed timeframes, the Company may publish the novelization but must pay the writer not less than WGA minimum for the right to publish.4 (Article 16.A.3.a.(3))
b. Dramatic stage rights. The writer has the right to produce a stage version of the material after two years following general release of the motion picture if the Company has not exploited the dramatic stage rights. If the material is not produced, the writer may produce a stage version based upon the material 5 years after the date of the contract with the Company. There are certain rules regarding the use of the title of the motion picture. If the Company does exploit the dramatic stage rights, the writer must be paid for such use as provided under the MBA. (Article 16.A.3.b.)
The writer with Separated Rights is also entitled to:
a. Sequel payments.5 The writer must be paid not less than WGA minimum for theatrical motion picture sequels, television movie sequels, or a television series based on the film. (Article 16.A.5.) The writer may negotiate in his/her individual contract regarding such payments, but payments cannot be less than the WGA minimum. In addition, the writer with Separated Rights is entitled to a "Based On Characters Created By" credit on any theatrical sequel and may negotiate for a similar credit on other sequels, including television sequels. (Theatrical Schedule A, Paragraph 2.d.)
b. Mandatory rewrite. The writer who sells or options an original screenplay must be given the opportunity to write the first rewrite at not less than WGA minimum. In addition, if no other writer has been employed, and there is a changed or new element, such as a new director or star which necessitates an additional revision, the writer with Separated Rights must be offered that first additional revision. This right continues for 3 years following the writer's services. (Article 16.A.3.c., Article 16.A.3.d.) The writer may waive this right but such waiver must be negotiated as part of the deal rather than appear as part of the boilerplate language in the Company's form contracts.
c. Meeting with a production executive. If the Company contemplates replacing the writer who has Separated Rights, the writer must first be given the opportunity to meet with a senior production executive who has read the material. Prior to replacing the writer, the Company must discuss with the writer the Company's view and give the writer a reasonable opportunity to discuss continuing to perform services on the project. (Article 16.A.3.c.)
d. Reacquisition. If original material (in the case of reacquisitions, material not based on any pre-existing material) has not been produced within five years, the writer has a two-year window within which to buy back the literary material, and may do so as long as the material is not then in active development. "Active development" includes when a writer is employed on the project and/or when other above-the-line players are employed on a pay-or-play basis. The writer's two-year window starts five years after the completion of the original writer's services or five years from acquisition, whichever is later. That time may be extended if the Company sells or options the material to another company. After the two-year period, the writer's right to reacquire expires under the Separation of Rights provisions, and the writer must negotiate directly with the Company.
In order to reacquire the material, generally, the writer must buy it back from the Company for the amount the writer was paid for the purchase and/or writing services. In addition, the writer must then obligate the "new" buyer to pay the balance of direct literary material costs plus interest on that balance. That amount is due upon commencement of principal photography. Direct literary material costs include those costs directly attributable to the writing such as the first writer's pension and health contributions, costs of other writers, etc. These costs do not include overhead or other costs of production. (Article 16.A.8.) 6
3. WHAT ABOUT REMAKES AND MERCHANDISING?
Although many writers' contracts contain above minimum payments for remakes based on the writer receiving Separated Rights, remake and merchandising are covered in other provisions of the MBA. Writers do not need to receive Separated Rights to be entitled to these payments.
Both a writer who has Separated Rights and a writer who does not have Separated Rights may be entitled to payment for remakes and/or merchandising. For reference, the requirements for theatrical films are as follows:
- Remakes: If the earlier version of the film was written under WGA jurisdiction, then the credited writers of the earlier version are entitled to be listed as participating writers on the remake. As participating writers they are eligible for credit on the remake and may be entitled to additional monies based on the final WGA-determined credits. (Article 13.A.17.)
- Merchandising: The right to merchandise is owned by the Company, and if the Company manufactures and sells an object or thing which is first fully described in the writer's literary material, and by such description such material is unique and original, then the writer must be paid 5% of the monies paid by the manufacturer for such merchandise. (Article 1.B.8.) Therefore, the writer's literary material must physically describe the object or thing being merchandised. For example, if the writer describes a particular kind of communication device in the script with specific physical attributes and if the final product substantially follows that description, the writer may be entitled to money for the sales of the object. The writer may, of course, negotiate for payments for the use of particular characters or objects.
4. HOW DO PRE-EXISTING CHARACTERS AFFECT THESE RIGHTS?
Pre-existing characters may also affect a writer's entitlement to Separated Rights under the following conditions:
- the Company furnishes a character it owns, and
- the character has been previously exploited in a book or a prior film, etc., and
- the furnished character is a principal character in the film.
If all three conditions are met, the writer is not entitled to Separated Rights in the film. (Article 16.A.2.b.)
If the character furnished is a minor character in the final film, then the writer may be entitled to Separated Rights in the screenplay, including the original structure and/or characters the writer creates but not in the pre-existing character. That means the writer may "use" the structure and/or characters created by the writer when writing a book or stage production but may not use the character provided by the Company.
If a principal character comes from a comic book, for example, even though the writer has written an original story using that character and has created new characters, the writer is not entitled to Separated Rights or payments for the further use of any original elements or characters. On the other hand, if that same comic book character appears in a single peripheral scene in the film, the writer may still be entitled to Separated Rights if the other previously mentioned criteria are met.
5. ARE THERE SEPARATED RIGHTS IN A TRUE-LIFE STORY?
A writer may be entitled to Separated Rights in a true-life story depending on what the Company has assigned to the writer.
If the Company gave the writer a specific underlying work on which to base a screenplay with the instructions to follow the structure and point of view of that underlying work, it is likely the writer has not created an original story and would not qualify for Separated Rights.
On the other hand, the Company may give the writer a subject matter (e.g., a real person), and some biographical material, and the writer must determine what story to tell, how to tell it, what tone and point of view to use, and is otherwise given a great deal of discretion so as to create an "original" story. The Separated Rights, if any, would be in the material by the writer, including any new and different characters, characterizations and events. The writer would not gain rights in an individual's life for example; those would need to be acquired separately. (Article 16.A.4.)
In short, in order to protect a writer's separated rights, it is important to establish what material the Company owns, what specific material is assigned to the writer, and to keep a detailed record of all instructions given the writer.
6. WHAT HAPPENS WHEN WRITERS SHARE SEPARATED RIGHTS?
As writers may share the qualifying "Written by," "Story by," or "Screen Story by" credit, they may also share the Separated Rights which flow from that credit.
A team of writers,7 designated with an "&," is considered a single writer and the team members must decide how the rights will be exploited and which of them, if either, will be authorized to exploit the rights on behalf of the team. A written collaboration or partnership agreement is recommended to address these issues before problems arise.
When writers writing separately (i.e., not a team) share the qualifying credit, each writer shares in the rights to the entire story and screenplay. For example, if two writers share "Story by" credit, neither writer owns exclusive rights in what s/he wrote alone. The writers share the rights to the whole property, and, therefore, publication rights and dramatic stage rights must be exploited jointly. (Article 16.A.7.b.)
There are provisions and procedures to make a preliminary determination of separated rights prior to the end of principal photography. (See page 21). If a writer exploits rights based on such a preliminary determination of separation of rights, and a subsequent writer makes significant changes and ultimately shares in the final qualifying credit, the subsequent writer is entitled to share in any proceeds from any exploitation. This is so even if the exploitation is based only on the first writer's material. The amounts due the subsequent writer are determined by the WGA. (Article 16.A.3.a.(3)(ii)(c), Article 16.A.7.b.)
7. What is a Preliminary Determination for Theatrical Separation of Rights8
The MBA provides for a separate and earlier credit determination under the Screen Credits Manual to decide who is entitled to Separated Rights in a film when necessary. (Article 16.A.3.a.3.(ii))
Generally, writing credits are determined immediately following the completion of principal photography and, in the event of a credit arbitration, three independent arbiters are asked to review and compare literary material and determine who is entitled to writing credit on the film. (See Theatrical Schedule A) The Separated Rights are awarded the writer(s) initially qualified for separation of rights who receives the "Written by," "Story by," or "Screen Story by" credit.
If the Company wishes to cause a novelization of a film to be published in conjunction with its release for the purposes of marketing the film, the Company must give the writer(s) with Separated Rights the opportunity to negotiate with publishers for rights and/or services. (See 2.a., above.) This may occur before the film has completed production. In that event, the Company needs to establish which writer has Separated Rights in the film and the WGA must conduct an earlier preliminary credit determination to determine who receives the qualifying credit. (Article 16.A.3.a.(3)) 9
If there is no additional writing on the film following the preliminary determination of Separated Rights, the initial determination becomes final. (Theatrical Schedule A, Paragraph 14) The final writing credit may be affected by additional writing after a preliminary determination of separated rights. Since the writer must also receive the qualifying credit to receive Separated Rights, changes in the script after the preliminary determination of Separated Rights may impact the final entitlement to Separated Rights. This is why all determinations of Separated Rights are subject to final WGA determination and may not be negotiated in a writer's individual contract.
2 See footnote 1.
3 If there is assigned material in the writer's contract and the writer receives a qualifying credit, the WGA must assert the material is nonetheless original within a certain number of days following a final determination to retain these rights. Therefore, it is the writer's obligation to contact the WGA promptly if there is assigned material listed in the contract, upon notification by the WGA that the writer may be entitled to Separated Rights.
4 WGA minimum for the right to publish is an advance of $3500 against 35% of monies paid by the publisher, with minor deductions for artwork and the cost of the person doing the novelization.
5 A theatrical motion picture "sequel" is defined as "a theatrical motion picture in which the principal characters of the first theatrical motion picture participate in an entirely new and different story." Each episode of an episodic series and motion pictures based on the original film produced for other mediums (free tv, pay tv, etc.) are also sequels.
6 The writer should consult with the WGA's Contracts Department if the writer is interested in reacquisition of original material intended for a theatrical motion picture.
7 The MBA defines a team as two writers who, prior to employment, offer to work together for approximately the same length of time on the same material. The MBA does not permit more than two writers to work as a team unless the WGA has granted a waiver prior to the commencement of writing services.
8 For information regarding the credit determination process, please review the Screen Credits Manual and the Credits Survival Guide.
9 There may be other instances when the WGA determines which among the writers or whether any writer is entitled to Separated Rights in a particular film.