February 12, 2012

Marlett & Me: Get All Deal Points in Writing!

by David Marlett | Published May 27, 2009

Rule One: Get All Deal Points in Writing!

The film biz is awash in crooks and con artists. And in this “dream factory” business, too many good and talented artists get duped. I can’t believe I gotta say this to all you smart people, but wise da f up!

There are two key elements to avoiding being stung: Get to know who you are dealing with and get it in writing. In this blog I am gonna rant a little about the second element.

A very talented guy who is helping BlueRun with an edit—we’ll call him Paul—wrote me a Skype instant message over the weekend. I usually can tell the nature of these queries right off the bat. Knowing I’m also a business attorney, they come with their plea which starts something like: “Hey, David. Do you know much about film production contracts?” Now Paul is a bright guy. Very talented. But he did what all too many of you do: He contracted for his services without a good services contract signed by both parties.

Let’s look at his situation: A producer with a proven track record of completing projects (a key to dulling Paul’s concerns, persuading him to drop his guard) comes to Paul, wanting to hire him for his services. But oh by the way, the producer has a film which has been shot, but he needs $40,000 to get it out of post. (Sound familiar?) Paul sees a great opportunity for himself here, so he agrees to put up $10,000 to help the producer and, in turn, the producer agrees to hire Paul for his next two films.

I’m not commenting up or down about the nature of the agreement. It might be a good deal for Paul. I don’t have to tell you that in today’s market you have to be creative sometimes in landing paid gigs—regardless of your talent. This type of deal is similar to the widget-maker who agrees to invest in new machinery if the customer will commit to a certain number of orders. Or the commercial real estate broker who waives his fee for one piece of property if the developer will commit to let him broker the next two shopping centers he builds. You have to think outside the box.

Not long after Paul made this deal and invested with the producer did the film start going off the tracks for internal reasons—disputes with the writers, etc. (According to the producer.) Months pass and still nothing. Paul asks for his money back, but is told it has been spent. But on what? The film is still not out of post. What can Paul do? Well, the key is this: What was in writing between Paul and the producer? Seems simple enough. But I can’t tell you how many times guys and gals like Paul enter these deals without good paperwork.

Why don’t we get all deals in writing? Usually for a few of several reasons. Often it’s because the producer has a track record (as in Paul’s case), and the crew or talent sees the deal as a rare opportunity to work with that producer. They don’t want to miss it, or mess it up, by asking for a written contract. Sometimes it’s just that they’re in a hurry to close the deal. Or they do sign something, and think it’s good enough, without concerning themselves with the details. Often it’s from an unwillingness to pay for an attorney to look the deal over in the first place. Understandable, but if you do this, you’re taking a big risk.

Now, Paul’s producer fella might be a good guy. I don’t know. It is entirely possible that he was honest going into the arrangement and the film really has gone astray for reasons beyond his control. But the money should still be there, right? It was for post-production work, right? That should have been in writing.

Now Paul has three choices:

1) Try to force the producer to return his money.
2) Try to help the producer get the film back on track, and thus keep his original deal going.
3) Walk away from the whole deal, licking his wounds, and hoping the producer will still hire him for his next two films… if they ever materialize.

But without the details of the agreement hammered out in writing beforehand, Paul is really limited to one of the last two options.

This is a cautionary tale. Learn from it. So many of the binds in which we find ourselves could have been avoided, or at least mitigated significantly, by simply getting the deal points in writing up front, and signed by both parties. Especially in the film biz.

Ride on.

David Marlett is a writer and director currently producing and directing the feature film, Of Kings & Cowboys. Marlett’s desire to direct and control his own work led him to create BlueRun Productions in 2007. He’s been acting for most of his life, and is also a non-practicing (“recovering”) attorney and CPA, with 20-plus years experience consulting and managing a wide assortment of companies in industries spanning from healthcare to entertainment. The Spring 2009 issue features his latest installment of his print column, Marlett & Me, with this sister blog on MovieMaker.com.

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COMMENTS | POST A COMMENT

Comment by Richmond tuxedos on 9/03/09 at 3:09 am: I recommend that you check out some of the published book-formed scripts such as Napoleon Dynamite: Final Shooting Script or A Prairie Home Companion: Official Screenplay. I use these for my scripts. They are primarily the same form except they do have minor differences in form that really don’t amount to anything. But this is what I suggest as a fellow screenwriter.
Comment by square peg web on 6/28/10 at 11:04 pm: Sometimes it’s just that they’re in a hurry to close the deal. Or they do sign something, and think it’s good enough, without concerning themselves with the details.