(Updated October 6, 2021)
Negotiating for the initial compensation you want in your screen deal isn’t the only deal point that matters. Here are some other key items to consider:
Issues Related to the Intended Market – UPDATED
With the pandemic closing theaters for many months and the rise of numerous streaming services, feature films are adapting to a new world of shortened theatrical runs and simultaneous (or near simultaneous) release in other media. Make sure you are protected as the studios experiment with methods to maximize revenue for each feature film.
While companies may say they don’t know where the film you are writing will end up, you can negotiate for the project to be treated as theatrical for all purposes under the MBA. Seek to include this as a deal point; don’t wait for it to be included in the long form, which can often take months.
If you are making a deal for a feature-length project for a streamer that will be contracted under new media terms, rather than theatrical terms, please be aware that the company may try to apply the MBA’s application of excess provision to credit your overscale writing compensation against future residuals. You can address this in your deal by negotiating for no crediting of overscale.
Pension and Health
If you are selling a spec script, make sure you are also employed to do a rewrite! This is essential and will ensure that the Company makes pension and health contributions on the rewrite AND the purchase price.
Similarly, if you are optioning your script, make sure that you are employed for at least one rewrite. This ensures that you will get P&H contributions on the purchase price if the Company exercises the option.
Note: If your script is original, the MBA separated rights provisions require you to be employed for a rewrite, if one is required. Don’t waive that right!
If you are hired to write a theatrical motion picture, it is customary to include bonuses such as credit and production bonuses. The MBA does not include bonus compensation, so you have to negotiate for them in your individual deal. (As an extra benefit, keep in mind that pension and health contributions are due on bonus compensation too, up to the relevant contribution caps.)
Initial release on new media:
- In the current climate, it’s a good idea to negotiate for a specific bonus if the project has its initial release on a new media platform—as an alternative to the usual box office bonus in the event there is a market switch.
- And, if your deal is for a theatrical project, it’s nonetheless possible that the company may ultimately produce the script for television or new media instead. To cover that possibility, it’s a good idea to negotiate that any credit bonuses are triggered by both “screenplay by” and “teleplay by” credit.
Spin-offs and Sequels
In today’s landscape of “tentpole” franchise films based on comic books or other intellectual property, it is less likely that you will have separated rights in your script. This means that if the Company decides to “spin off” an original character from the script that YOU created, you will probably not be entitled to MBA payments for the use of that character.
- If you are hired on this type of project, it is a good idea to negotiate for character payments or sequel payments for characters you create and who appear in subsequent films or television/new media series.
- Note: the MBA provides for minimum sequel payments IF you are entitled to separated rights. However, most writers negotiate for more than MBA minimum.
It is ALWAYS a good idea to include a right of first negotiation for screen or television/new media spinoffs and sequels.
This is true EVEN IF your script is original and you have separated rights, because the MBA does not provide for the right of first negotiation.
WGA Coverage of Options and Purchases
For options and purchases to be covered by the MBA, the literary material must be, acquired from a professional writer.
“Professional writer” is a term defined in the MBA, and someone can qualify in one of several ways—see the definition below.*
However, even if you don’t meet any of the criteria in the MBA, it is possible to negotiate professional writer status as an overscale term. The following language can be used for this purpose: “Writer is deemed to be a “professional writer” for all purposes under this agreement, and the parties agree that the [option/purchase] is under the jurisdiction of the WGA.”
For original material ONLY, the MBA provides for a limited right to reacquire your material by paying back writing costs. This is an opportunity—for a finite period —to buy back the project.
In addition, the MBA also provides a right to buy back rewrites done during an option, but ONLY if your script is original.
If the script is based on underlying material, particularly underlying material you control, it’s critical to consider negotiating a right to buy back any rewrites done while the material was under option.
While the MBA provides for reacquisition in certain circumstances, the “gold standard” for all unproduced projects would be a passive reversion to the writer. If you want to negotiate for this type of provision, consider the language in the Guild’s Low Budget Agreement:
“If the Picture has not commenced principal photography within eighteen (18) months after the later of the sale of a spec script (where no services are to be rendered under employment) or delivery of the final step called for under the Writer’s agreement, then all right, title and interest in the Screenplay and any revisions thereto shall automatically revert to the Writer, and Company shall have no further rights therein.”
When working for an independent producer, you may consider negotiating for the company to place your total guaranteed compensation in an escrow account before commencement. This simply protects your compensation should the project fall apart. In certain instances, the Guild may require a new signatory company to deposit initial compensation and benefit contributions with a payroll company. If you have questions about this, you may contact the Signatories Department. And if you are ever in a situation where you are paid late or not paid at all, please contact the Guild’s Legal Department.
If you have questions about any of these issues, please contact the Contracts Department.
*A “professional writer” means any person who has (1) received employment for a total of thirteen (13) weeks as a television, motion picture or radio writer or writer on a “High Budget SVOD Program” (as defined in the Sideletter on Literary Material Written for Programs Made for New Media), or (2) has received credit on the screen as a writer for a television or theatrical motion picture or on a “High Budget SVOD Program” (as defined in the Sideletter on Literary Material Written for Programs Made for New Media), or (3) has received credit for three (3) original stories or one (1) teleplay for a program one-half hour or more in length in the field of live television, or (4) has received credit for three (3) radio scripts for radio programs one-half hour or more in length, or (5) has received credit for one (1) professionally produced play on the legitimate stage or one (1) published novel.