The Economics of Screenwriting
I’ve got a few articles I’ve been planning to write, but sometimes a better idea comes along and you have to roll with it. Pro writer Derek Haas suggested that I write about how we get paid, what the various terms and methods mean, and how we can expect success or failure to impact it all.
Good idea. Frankly, I had no idea what anything meant when I started, so I hope that some of you find this of value.
There are a few basic ways to get paid as a screenwriter. You can option literary material, you can sell literary material, you can pitch an idea, or you can be hired on an assignment.
Options don’t do technically fall under the WGA’s jurisdiction. Options are just rental agreements. The optioner pays the optionee a fee that grants the option the exclusive right to “set up” the project at a studio (typically as a producer). The writer will then sell the literary material to the studio.
If you sell a script, the studio has to pay you scale. “Scale” is just a term for the basic minimum amount. Right now, if you sell an original screenplay for a “big budget” film (a film that costs more than $5,000,000), scale is roughly $77,000 (including one additional rewrite step). You can learn about all of the various minimums here.
Minimums aside, however, most writers work above scale.
A typical deal for a pitch or assignment works like this…you’re paid your “quote” (your going rate) for a draft and a set of revisions (aka a second draft, often shortened to “set”). In addition, the studio will typically detail optional steps they can trigger if they desire. So, if your deal is, say, $500,000 for an original, you’ll get paid $500,000 for two drafts, but the studio might hold an option for another set for $150,000 and a polish for $75,000. If they want it, that’s what they’ll pay (and you have to write it, pending your availability). If they don’t want those optional steps, they don’t have to pay that money out.
Then there’s the credit bonus. Most writing deals include a bonus for sole screenplay credit and a reduced bonus for shared screenplay credit (I’ve never heard of anyone getting a bonus for story credit).
That’s where all this “X against Y” stuff comes in.
If your quote is $500,000 against $1,000,000, that means you get paid $500,000 for those first two drafts. If you get sole screenplay credit on the movie, you’ll get an additional $500,000 to get you to the $1,000,000.
Shared credit bonuses are typically half the sole credit bonus.
When working on deals, it’s always important to know what’s applicable against the bonus and what isn’t. For instance, the optional steps are almost always considered applicable, meaning that if you’re $500,000 against $1,000,000 and the studio pays you an additional $225,000 for optional steps, that optional money cuts into the rest of the money they owe you if you get sole credit. In this case, instead of getting $500,000 to get to the million, you’d only get $275,000 in bonus money (because you’ve been paid $500 + $225 already, and 500+225+275=1M).
Therefore, once you work beyond the initial quote work and optional steps, it’s critical to ensure that new payments are not applicable against the bonus, because you never want to be in a situation where working more doesn’t get you more.
Many writers will do an “all services deal” once the film heads into production. The all services deal is a flat payment that covers all the writing the film requires until release. All services deals should always be non-applicable against the bonus, and they should be made with care. Some kind of time limit on them is usually advised, in case a film drags on and on.
Payments are typically made for commencement and delivery, with a 2/3 - 1/3 split being ideal, i.e. you get 2/3rds of the money for a particular deal step when you’re told to commence writing, and the remaining 1/3 when you turn in the draft.
All services deals are typically tied to production milestones, e.g. you get 40% at the start of prep, 40% at start of principle photography and 20% upon completion of the film.
Unfortunately, studios are infamous for “late pay.” Writers will turn in drafts and be forced to wait weeks for payment. Or, as was the case on my first job, writers are hired and told to commence writing, but even the starting payment is held up for weeks.
My easy answer on late pay is that no writer need suffer it. My position has always been “I start when I’m paid” and “I turn in my draft when I’m paid.” Simple as that. The studio likes to say they can’t officially pay commencement until a longform contract is signed, but that’s baloney. A deal memo and certificate of authorship is all that’s required.
As far as quotes go, rewriting usually pays less on a quote basis than original work. The basic rule of thumb is that a rewrite gig should earn you about 75% of your quote for an original gig.
Of course, there’s the highly-desired weekly gig, which is a whole ‘nother thing. Weeklies are when studios hire writers on a week-to-week basis, almost always for production writing. Weekly rates tend to be quite high. The studio will always try and finagle the writer toward a polish if they think one week will turn into three or four.
That’s the tug of war that makes dealmaking so much, um….fun.
So, once you have a quote, how do you improve it (or get a “bump” in the industry parlance)?
There are three basic ways to get a bump. First, sell a pitch or spec in some kind of competitive situation (more than one interested buyer). Second, write a draft that gets a green light. Third, get screenplay credit on a film that performs at the box office or earns awards.
Some basic guidelines for what writers earn. Note that these groups exclude spec sales, which, at some point, no longer affect a quote in a specific way (for instance, Rossio & Marsilii’s $5M sale for Deja Vu doesn’t mean that their quote for an original is $5M, although I think they’re both doing just fine…)
Baby Writers: No, not my term, but commonly used around town to denote writers who are either very fresh to the business or who have little experience working. Typical quote is 100 against 250.
Typical Writers: They’ve sold scripts, maybe had a movie or two made, maybe it didn’t do so well, but they’re definitely in the game. Typical quote is 300 against 600.
Known Commodities: These are writers who have multiple credits, a number of fans at studios, a good track record and a hit to their name. Typical quote is 700 against a million.
A List: These writers have hits to their names, and are known to deliver the goods for the studio. They almost always have a few key relationships with top shelf actors, directors or producers. Typical quote is $1-1.5M against $2-2.5M.
Marquee Writers: Rarified air here. You’re talking about a pretty small number of writers who aren’t employees as much as investments. They earn more than most directors do. To be in this group, you’ll need a quote of two million against…well…more. Three million? Something like that.
I’m sure I’ve left out plenty. And it’s quite likely that people have different views on some of this stuff (particularly the last part). Lemme know what you think.
Do you know any good sites that can walk an “embryo writer” through the process of getting started in the biz? I’m not asking for a break, or for any help, just a “guidebook” of sorts to how the whole process of putting work out there happens for a complete newby.
I approve of this page and will therefore post with my real name.
I wanna get on the A-List, Craig. And I won’t stop until Tim Talbott is dead.
Or I’m on the A-List.
Thanks for the writing-related thread.
I’m not sure what you mean by “technically,” but the MBA does include terms covering options. In theatrical, they’re 10% of applicable minimum for an 18 month option, renewable for a subsequent 18 months for an additional 10% of applicable minimum; option payments are credited against the purchase price or other compensation due to the writer (Article 13.A/Compensation: Theatrical, paragraph 3).
I mean that (I think) union members can make option deals outside of the MBA.
I think.
Am I wrong?
Yes, you are wrong. Once you’re a WGA member, all option deals fall within the MBA. An option deal will spell out all terms of the full deal, once the option is exercised; therefore, as a matter of necessity, option deals fall within the MBA. No self-respecting financier will make an option deal without specifying full terms should the option be exercised. Otherwise, the writer would have the financier over a barrel.
If you have any questions about how option deals work, you might want to ask Victoria Riskin. Remember how her [alleged] option deal [allegedly] made her [allegedly] able to continue in elected office?
My head is spinning.
This means I’ll have to hire an accountant, doesn’t it?
Damn.
Isn’t Craig talking about a writer optioning a novel, say, while acting as a producer or would-be adapter?
That is, he’s not talking about guild minimums for optioning an existing screenplay.
Or maybe he is …
I thought Craig was talking about a screenwriter optioning a novel, say, in his role as would-be producer or adapter. Not, in other words, the optioning of a screenplay. Maybe I misunderstood.
Whoops. Thought my first post didn’t take …
Andy,
“I thought Craig was talking about a screenwriter optioning a novel, say, in his role as would-be producer or adapter. Not, in other words, the optioning of a screenplay. Maybe I misunderstood.”
The Guild has no regulations regarding how much a screenwriter must pay someone to option material.
Josh,
Yes, I see that now, after re-reading Craig’s intial post. In fact, it’s pretty clear.
Andy (Repetitive, pointless posts a specialty!)
In other words: Screenwriting, even for newbies, pays a lot more than answering phones. So work harder if you want to be deserving of that kind of investment, lazy ass.
That’s what I got out of this anyway. Maybe I’m self-obsessed? I’ll be at the library doing all that research I tried to skip over if anyone needs me…
For clarity sake, I should have said “an option deal will spell out in advance all terms of the full deal, should the option be exercised.”
The option contract is as lengthy and detailed as a regular contract for the sale of a screenplay. The only difference is that it has additional clauses about the option. It will also include all terms should the option be exercised.
Of course, as Josh correctly notes, options for non-scripted material are not covered. If you option a treatment or screenplay to a financier and receive payment, that is covered by the MBA. If you sell an option for a play or novel, or in turn option someone else’s source material, that is not covered.
I know that the MBA can cover an option. My question is whether or not the MBA security clause covers options, i.e. I can’t write a screenplay for a non-signatory, but can I option a screenplay to a non-sig?
After all, I’m not going to sell it to that guy. I’m eventually going to sell it to a sig, with the optioner attached as producer, right?
To be honest, I’m not as educated on options as I ought to be, so I’m hoping someone can teach me. I’ll amend the main article once there’s a definite answer.
Dante -
“In other words: Screenwriting, even for newbies, pays a lot more than answering phones.”
That’s if you work for an MPAA signatory… which, in most likelihood, many a newbie won’t. I.e. you’ll be stuck writing independent dtv crap, being paid, well, a lot less. It’s cheap booze and dirty hos for the early years. But once you get a studio gig it’s time for the good stuff!
Hmm, found something on the site that indicates that a company does have to be signatory in order to option material from a WGA writer.
Interesting, since they’re not employing the writer with an option.
I’ll email Grace Reiner. She’ll know.
Kevin,
Check out johnaugust.com. It’s a wonderful site for newbies, as Mr. August is very generous with his screenwriting knowledge.
Good Luck
Not if you’re a WGA member.
You may. For instance, Universal Pictures could directly option your screenplay. If they exercise the option, you will be employed by Universal Pictures to rewrite it. Options are not just used for producers to shop material. They are used sometimes by financiers/signatories to lock down material for a cheaper price than outright purchase.
The option agreement will include employment terms for the rewrite steps, just like the contract for an outright sale, which also includes terms for rewrite steps. The option agreement is very similar to the agreement to an outright sale, with the exception that the option agreement has additional terms regarding the option.
Should be “for an outright sale.”
Craig —
The actual wording of the MBA provision that sets terms for options begins like this:
The Company may option …
The operative word there, of course, is “may.” The Company and the writer can agree to treat the option as a form of employment, covered by the MBA … or not.
I thought that might be what you meant by “technically.”
Not necessarily. If a novel, play, short story, etc., has not been previously published or produced, then it can be optioned as literary material under the MBA (as opposed to serving as source material (and not subject to the MBA) in the case of works that have been published or produced).
This was a fairly standard practice back when the MBA was first drafted, during the studio era, although the most common type of material optioned or acquired were unpublished short stories. I don’t know if screenplays were ever optioned/acquired back then. I can’t think of any examples of movies from period made from spec scripts (It’s a Wonderful Life is probably the most famous example of a movie and screenplay adapted from an unpublished short story — I think the author sent it out as a Christmas card one year …).
Recently, the screenplay/movie Memento was based on a short story by Jonathan Nolan, but because the story had not been previously published, its first use/exploitation was the movie … making it “literary material,” rather than “source material” (this why Memento was considered an “Original Screenplay” by the Oscars, the BAFTAS, WGA Awards, etc., rather than an Adapted Screenplay).
Craig —
Sorry, missed your earlier post that rendered my “The Company may option …” post redundant.
But, as to the MBA union security agreement — that has no bearing on whether or not a Guild member can option (or sell or be commissioned/hired to deliver) literary material to a non-signatory company. Rather, it makes membership in the Guild a condition of employment under the MBA.
However, that condition can be satisfied by either becoming a full (or “constitutional”) member of the Guild (pay full dues, be subject to either Guild/West or Guild/East constitution, which gives you voting rights and gives the Guild the authority to discipline you) or electing for fi-core status (pay agency/fi-core fees only and not be subject to either Guild’s constitution, so, no voting rights for you, no disciplinary authority for the Guild).
But if you elect to become a full member of one or the other Guild, then you are subject to the constiutionally-based Working Rules … and it’s the Working Rules that preclude full members from working for — or optioning or selling literary material to — non-MBA signatory companies (in fields the MBA covers, that is).
It’s stupidly complex, because the terms “member/membership” really have two different legal meanings, depending on whether you’re talking about the relationship between employees, employers and unions, or about the relationship between a employee under a union’s jurisdiction and the union only.
Thanks for the post, Craig. If you’re up for it, I’d love to get your thoughts on a related but much less fun topic. It’s about the lifespan of writers.
I have several writer friends who’ve broken in, gotten multiple assignments, made money, and suddenly… they’re done. After only three or four years, their careers are over. Maybe they got too expensive, maybe they tanked their assignments, hard to say.
I see variants on this with more established folks. They’ve even had a couple movies made, not so long ago, but now they’re out.
Just wondering, from your observations, about people being able to sustain a career for long enough that they don’t, you know, die in poverty. Thanks!
There’s a nice annual earnings report from WGAw that gives some hard numbers - maybe that stuff should be added to the mix.
Median earnings of working WGA members: $106,756.00 (that’s an increase over last year).
% of working WGA members: 57% (also an increase).
All kinds of other fun numbers in that report…
Quick question, and maybe you can’t divulge this information or don’t want to.
But, aside from Ted (of course, Mr. 80 Billion Dollar Franchise writer guy), who would be considered Marquee?
All I can think of is someone like David Koepp and M Night Shyamalan (at least a few years ago), and I’m assuming someone like Bill Monahan would be there or at least approaching.
Anybody else? I’m just a sucker for name drops.
Akiva Goldsman. He’s a 5 million dollar bastard (in the best possible way).
So lets really explore the “economics” of screenwriting.
Like:
1) Screenwriting is pure competition (marginal cost = marginal revenue)
2) Screenwriting is monopolistic competition (marginal cost < marginal revenue)
3) Screenwriting is a monopoly (marginal cost is << marginal revenue)
It’s an easy calculation, Craig; can you do it? Do you understand your industry? And, despite all your cries that WGA management is clueless: do you have a POV that can move the supply curve that delivers greater profit to writers?
Curious.
lt
B. Taylor:
Scott Frank, David Koepp, John August, Akiva Goldsman, Steve Zaillian…
Just a few that come to mind.
LT wrote:
Mmmmmaayyyyyybee……
“Mmmmmaayyyyyybee……”
Poser.
lt
Lee —
To tell you the truth, I can’d make sense of what you’re asking. Are you suggesting a model wherein everyone who wants to sell a screenplay or be commissioned to write a screenplay are the suppliers, and every company that produces movies for which screenplays are required comprise the market? Or is it everyone who wants to sell to/be commissioned by an MBA Signatory = suppliers and MBA signatories = market?
I think you mean “poseur,” but hey…I think the word you really want is “coy.”
Simon Kinberg, Zak Penn, Don Roos (not sure about Roos anymore, but he was up there).
I have a completely noob-type question, so pardon the ignorance, but:
If you have a writing partner and you sell a script — let’s say for big budget scale, $77,000 — does each partner get that amount, or is it split down the middle?
Kent,
Split down the freakin’ middle…
You split it. That’s what they pay for the script. If 5 guys write it, you split the money 5 ways.
Anthony-
Thanks a ton! I’m a writer, first and foremost, but screenwriting has always fascinated me as a craft. I’ll take a look at Mr. August’s material.
Thanks again!
Thanks, Kevin & Bill! That’s what I woulda guessed, but I never saw it mentioned anywhere.
Quick follow-up question: do studios, then, prefer writing teams? One could argue that they’re getting more “brainpower” for less money that way, but one could also argue that that’s just silly.
Thanks!
Kent,
Studios prefer a script that they feel will make them lots of money.
No, but seriously, writing teams (myself included with my writing and directing partner, Larry Strong) don’t actually work faster or slower than sole individuals.
If a “step” in a writing contract constitutes the next draft be delivered in 3 weeks, a writing team won’t deliver the draft in 10 days. We’ll still deliver the draft in 3 weeks.
Honestly, I don’t think they care either way.
Awesome — thanks again, Kevin!
I think Crag’s post of the $ involved just increased the supply of first time original screenplays by an order of magnitude …
I think Crag’s post of the $ involved just increased the supply of first time original screenplays by an order of magnitude …
An option is merely a deferred sale. It grants the option-holder control of the rights. There’s no need to complicate the thread with details. It gives the holder the exclusive right, without obligation, to purchase the script and acquire the rights on or before a cetain date. Of course it contains the full details of the sale. When an option is exercised, the acquisition agreement it is attached to is what is being brought into effect.
Back to the topic at hand, I was under the impression that WGA members are contractually forbidden from selling their specs to non-sigs?
If that is the case it follows that they can not in good faith enter into an option agreement with a non-sig.
(Well, not unless the option requires a WGA-sig to buy the producer out of his option, so a WGA-sig can exercise the deal direct with the writer under a WGA contract — and you would be crazy not to have such a clause anyway….)
A writer like Craig or Ted would not be working with the kind of producer who needed the safety net of an option before approaching studios, so I guess this discussion applies most to the ‘baby writer’ caste.
Despite the whole ‘unions only represent employees’ thing, The MBA somehow asserts jurisdiction over specs that are not works for hire.
It lays down rules for the sale of material to sigs by newb vs ‘professional’ non-member writers.
All writers employed by a sig are entitled to WGA terms, only ‘professional writers’, as vaguely defined in the MBA, are entitled to WGA min terms if they sell a script to a sig as a straightforward acquisition.
So it would seem the MBA presumes to cover specs, whether or not they are couched as works for hire in the final contract. If all Union spec sales were assumed to be works for hire, the MBA would NOT be drawing a distinction between newbs and ‘pre-pro pros’.
It follows that the MBA prohibits options to a non-sigs, so long as the option allows for a rights transfer to a non-sig entity.
Craig,
Since it’s all to often lost in on-line exchanges, I’ll make it clear I’m being playful. Tend to treat these thing as I speak in person. Your correction is noted, you poseur.
Ted,
I’d define the market as your first example: “everyone who wants to sell a screenplay or be commissioned to write a screenplay are the suppliers, and every company that produces movies for which screenplays are required comprise the market.”
Now, the questions are: do you guys know what the supply side economics are? Do you know how to impact this curve through WGA actions? The MBA is just one tool the guild can use.
lt
If it’s a WGA deal, I think it’s limited to two writers per writing team… the credit guide says three writers may be permitted but the minimums would need to be increased so that the same money isn’t being split 3 ways.
The MBA is a tool the WGA can use to impact the curve of economics for the supply side… This is getting interesting…
ps: in my browser this article begins “I’ve got a few [huge pic with plenty of naught$]……. …$. .$… ..$.. …..articles I’ve been planning to write”.
Not cool, Mazin!
Wha?
just a pagination quirk. ‘I’ve got a few’ is widowed at the top of the image. Thought it was funny, in a flaunting-vast-screenwriting wealth way. ;) I wasn’t being serious.
So what’s the deal with the MBA and employment? Is this clause covering non-member specs just an indulgence without any basis?
There’s nothing in any WGA contract that forbids someone from selling specs to non-signatories.
There is a WGA, west, Working Rule that does so. Theoretically, someone who has agreed to be subject to the WGAw’s constitution has agreed to abide by that Rule. However, back in 2004, the WGAw’s Board of Directors instituted a policy that effectively rendered all Working Rules “moot,” save for someone serving as an elected representative. This policy was affirmed just last year. So, if you’re a WGAw member who isn’t serving on the Board of Directors, you can do what you want.
There’s also a WGA, East, Working Rule that prohibits its WGAE members from working for non-sigs. As far as I know, that rule is still in force.
So, summing up:
You are not prohibited from selling to non-sigs by dint of having made a deal under a WGA contract.
If you’ve made a deal under a WGA contract and have chosen to become subject to the WGAw constitution, there’s a Working Rule that prohibits you from selling a spect screenplay to a non-sig, but it’s moot unless you are serving on the Board (NOTE: WGAw membership is possible only if you live in the U.S. west of the Mississippi or anywhere else in the world except the U.K.).
If you’ve made a deal under a WGA contract and have chosen to become subject to the WGAE’s constitution (you must live east of the Missiissippi or in the U.K. to do so), there’s a Working Rule that prohibits you from selling a spec screenplay to a non-sig; as far as I know, this rule is still enforceable across the entire East membership.
No, it doesn’t. Or, rather, it does, but only if the writer and the Company agree that the purchase will be subject to the MBA.
A writer of a spec screenplay may choose to forgo the rights and protections guaranteed by the MBA, and make a deal for whatever terms he can negotiate (save for any terms that would prohibit the Company from guaranteeing all MBA terms to any subsequent writers hired on the same project, of course).
However, altough you are right that a spec screenplay is not a work-made-for-hire, a Company will almost certainly, as a condition of sale, require the writer to sign an agreement stating that the screenplay is to be considered a work-made-for-hire. Should the writer sign such a document, guess what? It means that the spec screenplay is a work-made-for-hire.
It’s because Companies require this that the Guild (the WGAE and WGAw acting as a joint collective bargaining agency) was able to successfully argue that spec screenplays may be subject to the MBA, and to negotiate terms specific to acquired screenplays: the writer must be guaranteed employment to perform the first rewrite, and the Company must make H&P contributions for the rewrite on a sum equal to the rewrite fee plus the acquisition price.
Here’s how the MBA defines “professional writer”:
*The term “professional writer” means a person who on or after November 1, 2004, sells, licenses or options to the Company the ownership of or rights to use literary material written by such writer, for use in the production of a motion picture, which literary material had not prior to such sale, license or option been published or exploited in any manner or by any medium whatever, and who at such time
has received employment for a total of thirteen (13) weeks, which need not be consecutive, as a motion picture and/or television writer, or radio writer for dramatic programs; or
has received credit on the screen as a writer for a television or theatrical motion picture; or
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
has received credit for three (3) radio scripts for dramatic radio programs one-half hour or more in length; or
has received credit for one (1) professionally produced play on the legitimate stage, or one (1) published novel.
The Company may rely on the statement of the writer with respect to whether or not the material had theretofore been published or otherwise exploited.*
Seems pretty specific to me.
Of course, if the Company chooses to classify someone as a “professional writer” who does not meet this definition, and the writer (and no one else) challenges that classification … then he/she is a professional writer. I’ve never heard of any Signatory Company refusing to cover a spec screenplay sale under the MBA. Do you know of any cases where this happened?
Ted, that’s a very thorough answer. Resolves most the outstanding questions. If I understood correctly WGAw members can sell (and therefore option material) to whoever they like, as long as there are no rewrite steps (or a sig is doing th hiring for that part of the deal).
How come UK is WGAE — is this change recent? I thought there was a letter of understanding between WGGB and WGAw?
‘Legit stage’ and ‘published novel’ are both rather vague, but it’s not really relevant as you say since a sig would have a hard time justifying discrimination against a writer in order to purchase a script for less than scale. Raises the question, why is there such a rule at all?
It is not unheard of for a studio to buy a script as a copyright assignment. Maybe someone else can pipe in on that.
Ted:
I disagree. Maybe it is just horribly worded (well, we know that!) but the MBA obliges companies to abide by the MBA if they are purchasing a script from a member or ‘pre-pro pro’. Writers who do not meet the definition must, technically, negotiate to be treated as a professional writer and the company is free to dictate their own terms.
The relevant sections of the MBA strung together:
It’s implicit from this that the MBA covers the purchase of literary material if the writer is a professional writer/WGA member.
Acquired is open to interpretation, but in this context it’s a stretch to interpret ‘licensed’ to mean anything other than an assignment of copyright. That’s the normal meaning.
MBA applies to, among others:
Snip paragraph detailing work-for-hire….
Work-for-hire and acquisition of copyright are discussed separately, and MBA appears to cover both scenarios, or at least make the gesture.
Ted:
This subtly may explain it, but it’s still confusing that the MBA uses the term ‘license’, and I don’t remember the section where companies where given the option of abiding by the MBA when licensing work from a ‘pro’ writer — the may appears to be a ‘must’.
So why discriminate against them in the MBA?
ps
Sounds like I was making a definitive statement there, I mean purely per my understanding of the mba as written… it may be enforced differently but the language seems clear enough (in so far it’s possible to characterise any language in the mba as particularly clear).
What sucks about this thread is that it’s become clear that I’m still a “baby writer.”
This is really really confusing.
So the MBA differentiates between members that are professional writers (as defined in Ted’s post) and members that are non- or semi- or pre-professional?
How do the terms differ for the two groups?
(Or would it take dozens and dozens of pages to explain this?)
Everyone working within the US who is eligible for membership and is employed by a sig is entitled to WGA terms and working conditions.
For ‘acquisition deals’, it discriminates against non-members who haven’t had a novel published (whatever that means? vanity press included?) or three plays aired on some Nevada radio station.
If it is a spec sale, then you must fit the entirely arbitrary definition of a ‘pre-pro pro’ to be entitled to what should be minimum standards.
According to the MBA, at least.
I would trust Ted’s insight before that screwed-up document any day.
There are still glaring inconsistencies, though.
I can’t answer your question directly because as far as I remember, ‘professional writer’ does seem to be used in lieu of ‘wga member’ in places. However, I’m not eager to dive back into the MBA to confirm! This may be BS on my part.
If this is the case, then it would appear you could accrue enough points to become a fully-fledged WGA member, but without screen credit or Ham radio exposure or a book out at all good PublishAmerica outlets, not be deemed a ‘professional writer’…
That’s nuts. I’m pretty sure all members are equal and the whole ‘pro writer’ thing is only relevant to spec ‘acquisitions’ prior to becoming a WGA member.
Has the WGAw acknowledged the “mootness,” or is that your reading? Anyone tested it in any meaningful way?
To be clear, the WGAw has not acknowledged such mootness, it is definitely Ted’s interpretation, and I suspect they would fight any member who made this argument.
Whether they’d win or not is a whole ‘nother ball of wax.
do they have big feet? ‘moot’ is perilously close to ‘think again’ on slappynipsy’s Jump To Conclusions mat. (Strike Out is way up at the top.)
relevant working rule, penalty isn’t so stiff:
Can non-members work for companies on the strike/unfair list now, without risking being banned from WGA membership for life, as was previously the case? If the relevant working rule for members has been lifted, that would seem fair.
Another working rule is that members must have a signatory agent, which seems a pretty fundamental requirement.
Surprised the penalties are so low… that alone renders many of rules moot in any event.
http://wga.org/subpage_writersresources.aspx?id=71
Yeah, if I remember your previous articles on the legal basis for collective bargaining agreements correctly, they simply have no legal basis to restrict the sale of property. AFAIK, it doesn’t make a whole lot of difference to a studio or producer whether they license a script, or couch the transaction as a work for hire.
I’ve yet to see a convincing argument that explains why it would be undesirable to a studio to license copyright. The work for hire sleight of hand seems to be just a convention, perhaps to satisfy the WGA more than anything else.
“the highly desired weekly gig”
Why do you assume this is a universal? I’m sure the weekly gig is highly desired among a certain type of journeyman, but to some of us, it’s rather distasteful. Why is the assumption made that if you’re in the WGA, you’re all after the same thing? I don’t have a problem with journeymen, but I find it sad that they usually look down on people who have other motivations, as if just hacking out a rewrite for the top dollar is the highest aspiration a writer can have.
What happens if the producer and the writer have the ever so diplomatic term, “creative differences”. Is there a rule on this or is a an “escape” clause worked into the contract for both parties?
Not even close. WGA Working Rule 8 says that WGAw members can’t work for non-sigs, or sell or option literary material to non-sigs; if someone does, they’ll be subject to disciplinary action. Theoretically, at least. I don’t think anything would come of it.
Really? You don’t know what the legitimate stage is? You don’t know what a published novel is? Give me a break. The terms aren’t vague, and the definition isn’t vague.
I didn’t say that, or anything like that, nor would I, cause its stupid. The MBA does not require Companies to acquire or license literary material according to the terms of the MBA. However, it’s now such a long-standing practice for Companies to do so, the only reason a writer wouldn’t receive those terms is if the writer refused to accept them.
Becuase, at one time, no literary material acquired or licensed by a signatory could be subject to the MBA. The Guild negotiated a term whereunder in some cases, acquisition/licensing deals could be subject to the MBA. Over time, the studios’ position eroded, and its now a long-standing practice for all purchase deals to be subject to the MBA.
It doesn’t legally oblige them, and that’s all that matters.
Um … no. You betray a certain attitude I’ve noticed in some pre-pros, and even some pros: that the reason they can’t sell a screenplay or get an assignment is because of the Guild. The reason they can’t negotiate better deals is because of the Guild. At one time, unions like the Guild could (and often did) decide who would get jobs with signatory employers — but that time is long past (60 years past, in fact; the passage of the Taft-Hartley Act that outlawed “closed shop” agreements). Nonetheless, there’s still people who assume that if they can’t get work under a union contract, it’s the union’s fault, it’s the union protecting union members, it’s the union acting exclusionary — when the fact is, the employers decide who gets work under a union contract, and the union has no say in the matter, one way or another.
Your complaint here seems to bely this misperception. You presume that the “professional writer” provision was inserted into the MBA at the Guild’s insistence, exactly as the Guild wanted it to be, for the purpose of excluding purchase deals made with some writers from coverage under the MBA. Whereas the fact that, in practice, no purchase deals are excluded from MBA coverage, and the Guild has never sought to enforce the “professional writer” provision as a means of preventing a writer from getting those terms, renders your argument as being without merit.
No, its explicit that the MBA does not cover, nor is intended to cover, the purchase/license of some kinds of literary material. What is implicit is that the MBA does cover or is intended to cover the purchase/license of other kinds of literary material.
And, that is true: the MBA is intended to cover the purchase/license of literary material … provided the literary material has NOT been previously published or otherwise exploited, and the writer and the Company agree that it will be subject to the the MBA.
Really? So when you click “Agree” on a software licensing agreement, it means you’ve just been assigned the copyright in the software? Or when you buy a song from iTunes according to the terms of the user licensing agreement, it means that the songwriter and producer have assigned their copyrights in the song to you?
Of course not.
“LIcense,” in both its “normal” use and here, means the Company has licensed the rights in the material, either in full or part (ie, just the film rights, for instance), for a limited period of time stipulated in the agreement. After that period, all rights revert to the author (you).
“Acquire” is not open to intepretation. It means the Company has acquired ownership of copyright in the literary material.
Notice, though, that the MBA does not specificy how the Company acquired ownership of the copyright. That’s because there’s two different ways it can be done under U.S. law. One way is more favorable to the writer; the other is more favorable to the studio.
Let’s say you write a spec screenplay. You are the author and copyright owner. A studio wants to use your screenplay in a movie. They don’t want to license the rights, they want to own the copyright outright, they want to acquire the copyright.
The first way they can do this is, you assign the title (as in “property title,” not “title of a story”) in to the copyright to them. However, this assignment is not permanent. After a certain period of time (35 years, currently, under U.S. law), the assignment terminates, and the copyright reverts to the author: you. If the studio wants to continue to control the copyright — to do remakes, or to create merchandise using the characters, or a tv series, or whatever — then they have to negotiate with you to do so … and, of course, there’s no guarantee you won’t just go sell it a different studio, which would now be positioned to cash in on the brand created by the first studio.
The other way a studio can acquire the copyright in your spec screenplay: require, as a condition of purchase, the you sign an agreement that says the screenplay shall be considered a work-made-for-hire. By doing so, you are creating a legal fiction whereunder you were never owned the copyright in the screenplay; more, you were never the legal author of the screenplay. Rather, the studio is the legal author, making the studio the initial copyright owner … forever. In perpetuiaty. Across the universe. You have no claim to any authorial rights in the screenplay — including the right of termination of assignment — other than whatever rights you can negotiate in your purchase agreement. Once you’ve been paid off, the studio never has to deal with you again in regards to their screenplay, their work of authorship.
By doing it this way, the studio is in the exact same position they would be if the writer had written the screenplay under contract of employment: the studio is the author, the studio is the initial copyright owner, and the writer — the actual creator, the author-in-fact — benefits economically in the work only to the extent negotiated in the contract.
Can you guess which one of these ways of acquiring literary material the studios prefer?
No. The MBA differentiates between someone who writes literary material under contract of employment (“writer”) and someone from whom the Company acquires or license literary material not created under contract of employment (“professional writer”).
Also, these are simply titles attached to definitions. As such, it is possible for the same person to be both a “professional writer” (sold the studio a spec screenplay) and a “writer” (was hired to do a set of revisions to the screenplay) on the same project.
And, as I’ve pointed out a number of times, in practice, neither the Companies nor the Guild differentiates between someone who sells literary material to a Company who meets the definition of “professional writer” and someone who doesn’t. So, for all intents and purposes, anyone who sells literary material to a Company is a “professional writer.”
um, flashback:
Me: Back to the topic at hand, I was under the impression that WGA members are contractually forbidden from selling their specs to non-sigs?
[snip post explaining why options to non-sigs are therefore probably not kosher]
Ted: There’s nothing in any WGA contract that forbids someone from selling specs to non-signatories. …. ‘moot’ …. So, if you’re a WGAw member who isn’t serving on the Board of Directors, you can do what you want.
Me, just checking I had understood your thorough and detailed reply: If I understood correctly WGAw members can sell (and therefore option material) to whoever they like, as long as there are no rewrite steps (or a sig is doing th hiring for that part of the deal).
Ted [after I post a link to the working rules and point out they can’t all be ‘suspended’]: Not even close. WGA Working Rule 8 says that WGAw members can’t work for non-sigs, or sell or option literary material to non-sigs; if someone does, they’ll be subject to disciplinary action. Theoretically, at least. I don’t think anything would come of it.
?????????????
Ted, you understand I merely asked a question and pointed out some inconsistencies in the MBA, I was not arguing a point just seeking some clarification and you have gone out of your way to provide that.
I’m a bad writer, but not bad enough to have made up the MBA I posted above. It absolutely does state, explicitly, that it applies to property acquired or licensed:
I have yet to find the bit were writer and company have to agree to this.
Licensed and acquired is not a synonym for employment — if it were, how come employment is dealt with separately in the MBA?
It has sections With respect to ALL employment agreements and With respect to literary material licensed or acquired
/// MBA ////
ARTICLE 2 TERM AND EFFECTIVE DATE OF AGREEMENT A. GENERAL 1. The term of this Basic Agreement shall commence on November 1, 2004 and shall continue to and include October 31, 2007. 2. With respect to all employment agreements with writers in effect on November 1, 2004, the terms of this Basic Agreement relating to minimum compensation and to rights in material shall apply only to services performed and literary material written under such employment contracts where the date of actual employment (i.e., the commitment date) was on or after November 1, 2004, except as specifically otherwise provided herein in Article 2, Section B. or Section C. 3. With respect to literary material licensed or acquired from professional writers (as described herein), the terms of this Basic Agreement relating to minimum compensation and rights in material shall apply only to unpublished and unexploited literary material licensed or acquired from such professional
/// END ////
Precisely why I find it unlikely that the MBA would preempt this ‘legal fiction’ by characterising such an arrangement as an acquisition or license.
As you say, scripts ‘acquired’ under a work-for-hire agreement are not acquired at all, they are written under an employment agreement (Article 2A(2) above). I’m still not clear what 2A(3) pertains to, if not a copyright assignment/property title, or whatever you want to call a transfer of copyright.
I was merely wondering why the MBA seemed to deal with employment as well as acquisition. I think you’ve explained it, I still need to get my head around some you your points as it’s quite complicated and seems to be your interpretation of the MBA rather than anything that is written in black and white (and I’m only too happy to accept your interpretation of that convoluted document as the god’s honest truth).
Copyright side-issue….
So you did read my reply on the forum? ;)
It’s true that a termination only really impacts remakes.
It doesn’t mean that studios can not continue to exploit the original motion picture after 35 years… someone suggested that once, which is why I’m not taking copyright opinions as gospel in this thread.
Studios can not produce derivate works subsequent to the termination of transfer without re-negotiating with the author.
They can do what they like with derivative works that were created before the termination of copyright.
AFAIK, they can continue to exploit the original movie whose license has been terminated until hell freezes over:
“A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.”
Not really. I would be interested in the perspective of someone in studio BA, though.
I don’t think studios really consider remake potential 35-yrs hence.
Side issue, though. For some reason, the MBA discusses acquisition and I was just wondering why this is so.
The old post trying to shed some light on the whole termination of transfer thing vis-a-vis specs is here:
http://artfulwriter.com/forum/showthread.php?p=4080&post4080
Ted, et al -
“WGA Working Rule 8 says that WGAw members can’t work for non-sigs, or sell or option literary material to non-sigs; if someone does, they’ll be subject to disciplinary action. Theoretically, at least. I don’t think anything would come of it.”
This is kind of a biggie. Has anyone every tried/done this? There must be a precedent. If so, please post your experience… Even anonymously!
For if it were true that breaking the rule has no serious repercussions with the Guild, well, golly… what a wonderful world it would be.
Why would the writer and the company have to agree that, out of all the literary materialy the company could acquire or license, only liteary material that meets certain specifications may be subject to the MBA?
Or are you reading the phrase “shall apply 8only” to mean “shall apply always?”
‘Cause that would give it an entirely different meaning, one that is completely wrong to what the passage actually says.
Look, this is simple.
Someone who writes a screenplay on spec is NOT an employee. Someone who licenses or sales a spec screenplay to a Company is NOT an employee.
The Guild has jurisdiction over employees only. The Guild represents employees only. The Guild cannot bargain on behalf of anyone who is not an employee. The Guild cannot enter into a contract that sets terms for anyone who is not an employee.
And this means that the MBA cannot include a term that requires the acquisition/licensing of liteary material from non-employees be subject to the MBA.
It also can’t include a term that requires a non-employee and the Company may agree or disagree that the acquisition/licensing of literary material is subject to the MBA.
The MBA cannot include any terms that require non-employees to do anything.
And it doesn’t.
“Journeymen” don’t get weeklies. Weeklies tend to go to the A-list writers.
However, you’re right to suggest that I was being presumptuous. I’m sure there are writers who don’t do weeklies as a matter of principle…although I can only assume that they have a general antipathy to the entire notion of being a subsequent writer.
Wouldn’t make sense to say “yes” to a polish gig on a pre-existing script, but “no” to a weekly.
Good question. Technically, the contract rules. If the company wants to ditch a writer before their contracted work is up, they have to pay out the rest of the contract.
If the writer wants to quit early, well…they might offer to give money back. It’s been known to happen.
Usually, though, a settlement is agreed to. In Hollywood, like everywhere else, people are keen to avoid courts and publicity and formality when attempting to resolve a dispute.
The fact that a good number of disputes end up in court anyway is an indication of how many fights are going on in this town on any given day.
I don’t know any WGAers who have sold a script to a non-sig, but I do know plenty of SAGgers who routinely act in non-SAG films without obtaining any kind of a waiver.
Not that what SAG does necessarily means anything regarding what the WGAw does.
Ted —
Can this “legal fiction” be carried out even if the Author has previously registered his/her spec screenplay for copyright in his/her name?
I’m assuming that WGA members can go financial core and do non-sig work if they really wanted/needed to.
It’s an official policy, instituted by Board motion and unanimous vote (with one abstention) on January 26, 2004. It’s recorded in the Board minutes.
Although the policy is worded so at to apply to a specific member, of course, a union can’t make policies that apply to one member, but not others. That would be the very definition of arbitrary and discrminatiory, something specifically forbidden by the Labor-Management Reporting and Disclosure Act.
So, in cases where the Board is aware a rank-and-file member may have entered into employment prohibited by WGAw Working Rules or engaged in conduct that is proscribed by Article X of the constitution, rather than acting to ascertain the facts or initiating disciplinary procedure in order to resolve the question, the matter will instead by tabled as “moot” in light of the fact that the member is not serving as an elected representative.
Personally, I think it’s a stupid policy, since it effectively neutralizes the WGAw’s ability to discipline its members, but there’s a number of WGAw policies I think are stupid. All that really matters here is that the policy is applied fairly to all members.
Yes. The policy has been applied in at least one case (the case that led to the policy’s institution), and subsequently affirmed as still in force.
MHB —
That’s a good question. I think so, through a supplementary registration, but I’ll find out for sure.
-
This was a fairly standard practice back when the MBA was first drafted, during the studio era, although the most common type of material optioned or acquired were unpublished short stories. I don�t know if screenplays were ever optioned/acquired back then.
“Beggars of the Sea” was a spec sold by Seton Miller (“Adventures of Robin Hood,” “Here Comes Mr. Jordan,” etc.) to Warner Bros. in 1939.
It was retitled “The Sea Hawk” and released in 1940. According to the book “Inside Warner Bros. (1935-1951)” Miller and Howard Koch — the subsequent writer — squabbled over screen credit.
Thanks so much for this article, Craig (& Ted).
Great, great stuff!!! Thank you so much. My question on the MEMENTO example as a short story first:
What if a short story, such as mine…THE CALLING…is published on the web at a website?
Any script I write based on that website-published short story is considered an adaptation, right?
Thanks. MARK11
This is fascinating. Thanks!
Finally, I understand why I got laughed at for offering Rossio $4 for that Variety with his picture on the cover.
Why it is I see …
I see peoplelaughatme.
I see them everywhere.
Mark11 —
If you’ve been paid for the electronic publishing rights, yes. It’s the difference between exploiting the copyright in the work, and simply exercising it.
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MHB & Ted: see if these apply:
http://www.copyright.gov/circs/circ1.html#toc
http://www.copyright.gov/circs/circ12.pdf
An original author can transfer all or part of her copyright rights to another party by recording it with the US Copyright Office. Form PA has a place to register a transfer of copyright.
MoviePen —
Those allow the author of the work to transfer copyright to another party. That’s a different issue then whether or not legal authorship itself can vest in a studio after a work has been registered.
-
MBA swatch being discussed: ‘the terms of this Basic Agreement relating to minimum compensation and rights in material shall apply only to unpublished and unexploited literary material licensed or acquired from such professional writers on or after November 1, 2004.’
I’m not even sure this is a convincing semantic argument. It shall apply.
Always would be redundant.
It shall apply. Not may apply. Shall apply.
I know shall isn’t a very popular word in the US, but its meaning is clear:
(Well, that’s probably never happened before… Quoting dict.org is usually an act of desperation but this is a legal contract we are discussing and if everything indeed hinges on this one word, then we could do with a definition.)
No, it wouldn’t.
So we agree that the MBA is worded in a way that is not only obscure, but probably ‘completely wrong’. I never suggested that MBA was correct to try and leverage jurisdiction over sales, just that that this appears to be the case.
I think your interpretation of the MBA assumes it must be accurately drafted and could never be wrong. However, the language doesn’t really bear misrepresentation, even if it’s well-intentioned.
I just checked Brooke Wharton’s book and the WGA/MBA chapter also reads the MBA as ‘covering’ sales (ie, obliging companies to comply with the MBA):
She’s a lawyer.
I just noticed this comment:
“Um … no. You betray a certain attitude I’ve noticed in some pre-pros, and even some pros: that the reason they can’t sell a screenplay or get an assignment is because of the Guild.”
I don’t know where I betrayed that. By not sucking up to you? This is the first post were I have let my frustration show, despite the snide remarks in each of your replies. My posts were merely seeking clarification on some factual points. I can see why semi-anonymous handles might annoy you when they are on-topic, Ted.
It’s unlikely I would ever be under Guild’s total effective jurisdiction anyway. Strange comment to make.
Still haven’t got to the bottom of whether options are okay or not (the actual question that started this):
So is this accurate, or still ‘not even close’ because I happened to post it? Completely flip flopping to try and bash posters you apparently don’t like is a little pointless and transparent.
Can non-members work for producers on the strike/unfair list without risking being banned for life, since working rules for members are moot?
MHB -
Q is, does it matter? Yet to see any examples of when a studio declined to purchase a script because a writer registered copyright.
Most the people who read this blog do not have agents and a direct channel to studios. The suggestion that studios would rather have a clouded chain of title so they are completely free to engage in the work for hire ‘fiction’ is absurd.
This debate started when someone asked about options — short form option agreements and the attached assignment contract are filed with the copyright office so there’s a record of who has a lien on the material.
It follows that anyone optioning a script should register copyright so there’s a clean and consistent record establishing ownership of the script.
“The sale of work to a signatory company is a different kettle of fish. For whatever reason, if you sell your work to a signatory company of the WGA, you are not “covered” by the MBA unless you are considered a “professional writer”.”
I don’t recall anyone asking me or otherwise attempting to suss out whether I was a “professional writer” under the definition in the MBA prior to or during any negotiations for the sale of the script that got me into the WGAw. Under that definition, I would assume there are a number of WGA members who wouldn’t be professional writers.
“Can this “legal fiction” be carried out even if the Author has previously registered his/her spec screenplay for copyright in his/her name?”
Yes, unless someone screwed up in my case, the answer would be yes.
“Can non-members work for producers on the strike/unfair list without risking being banned for life, since working rules for members are moot?”
Would non-members even know who’s on the strike/unfair lists? The lists say at the top that they’re confidential, after all.
It is my understanding that when a Writer becomes a member of the WGAw or WGAe, they are agreeing to be bound by the Constitution and By-Laws of that particular Guild.
According to Article XVI of the WGAw Constitution:
And, according to those Working Rules, “each member shall comply with these Rules in spirit as well as in letter.”
One of those Rules states:
And, Article X of the WGAw Constiitution states:
As far as a non-member writer working for a WGA signatory company on the strike/unfair list, Article IV of the WGAw Constitution states:
Regarding Options being covered under the MBA:
When a Company becomes signatory to the Minimum Basic Agreement, they sign a letter of adherence. And pursuant to the MBA Schedule of Minimums:
Who knows if any of this is enforced.
Ryan,
They would know if they called the WGAw Signatories Department before signing any Option/Purchase contract — (323) 782-4514.
broughcut:
As has been previously cited in this thread, there is a passage in the MBA that says “this Basic Agreement shall not, and is not intended to cover, contracts for the purchase of literary material … with a person who is not a professional writer as defined [herein].”
However, as I have said previously, it’s a matter of long-standing practice that this is not enforced by the Guild or the Companies, and it is also a matter of long-standing practice that spec screenplays can be covered by the MBA. Too such an extent, an arbiter would almost certainly rule that it can no longer be enforced in regards to spec screenplays.
The fact that the passage says that the Basic Agreement “shall not, nor is intended to, cover the purchase of literary material … with a person who is not a professional writer” does not mean the purchase of literary material from a person who is a professional writer must be subject to the MBA. I have no idea why you continue to insist this is the case. As I’ve said a couple times, the MBA has no jurisdiction over anyone who is not an employee of a signatory company, and someone who sells a spec screenplay is not an employee. He can, however, agree that the terms of the Basic Agreement be applied to the purchase.
As for the passage you keep citing: try reading it in its entirety. All it means, simply, is that the terms of the 2004 MBA does not apply to all literary material licensed or acquire from professional writers, but shall apply only to a specific type of literary material (unpublished/unexploited) from professional writers on or after a specific date (November 1, 2004).
Then why did you suggest it?
-
“
Ryan,
They would know if they called the WGAw Signatories Department before signing any Option/Purchase contract — (323) 782-4514.”
Then it’s not so much confidential then, is it, despite the wording at the top of the list(s)?
As it is, I recall the form asking me if I sold anything during the times when the Guild was on strike, but I don’t recall any form asking me to detail any dealings I may have had with a company on the strike list (nor any detailed lists of who was on the strike list at what time. Only after I joined the Guild did I discover that a company that backed out of deal on a script of mine had once been on one of the lists - I don’t remember which one - but had since been removed).
Not entirely related, but several years ago, I had a series of discussions with a person in the signatories department who continually insisted that the WGAw rules were something different than what the rules said they were. He was also very condescending. Despite the years since these discussions, I’m still somewhat bitter about it, even though I believe this particular person is no longer there.
Incredibly difficult to get heard in this industry. Quite a turn-off and passion killer for someone thinking about writing.
Incredibly difficult to get heard in this industry. Quite a turn-off and passion killer for someone thinking about writing. Not to mention the horrible job security and lifespan you have as a writer. We’re all expendable - even J.J.Abrams feels strongly about this.
Sorry for the double post. I’d like to clear up what I said about J.J.Abrams. When I said he feels strong about writers being ‘expendable’, I meant he feels it’s a problem and strongly wants that to change.
How would a co-writer get paid on a screenplay? The screenplay rights are mine, but we both contributed to the writing.
Charlie,
You asked, “how would a co-writer get paid on a screenplay?”
My advice for all writers wishing to write together is to discuss and agree on these details BEFORE you begin working together, and then sign a Collaboration Agreement that spells everything you agreed to. A sample Collaboration Agreement can be found on the wga.org website.