Cinema Law: Should I Write a Season of TV For a Producer Without Upfront Compensation?

Q: A producer recently approached me with a finished pilot script and asked me to write the rest of the first season so he could pitch to a network.

He wouldn’t offer upfront compensation, but said I would be attached as the writer as part of a network deal. Are there any options here for ensuring I’d make money at some point if the creator does? I’m not in the WGA.

I sense discomfort in your question, and you should listen to that discomfort because it’s trying to tell you something. I think you know this is an unfair deal. Even if you eke out concessions from the producer that you’ll get paid some point in the future, there’s no certainty that a network buys this show at all. In other words, he’s asking you to do a lot of work with no guarantee that it’ll ever be profitable for you.

A TV network isn’t going to buy a series just because a producer has managed to deliver a season’s worth of teleplays. They invest in profitable concepts and producers with proven track records. If this guy had either of those, he’d know that and wouldn’t waste his time trying to deliver 20-some complete episodes. Or at least, he’d be able to raise some seed money to pay you. The truth is, if a network does buy this show, your scripts will probably get trashed so it can meet the terms of its WGA contract. The network and production company will then establish a writer’s room and bring in its own trusted writers, all of whom will be WGA members.

Also, even if he signs a contract with you, that doesn’t obligate the network to follow the terms of the agreement. They just want the concept and the producer. They can easily buy you out for a pittance. If push comes to shove, do you think he’ll stick by you, or ditch you to get a greenlight? If you want to make anything off this deal, you’re better off convincing him to make you his partner. Then, instead of writing 12 to 22 new episodes, focus on building a killer pitch and making the pilot so good a network can’t turn it down. This is sound advice for anyone in this situation: if you’re an employee, you have limited rights and you’re less likely to get paid. As a partner, you have more control and won’t get shunted aside.

Look, at some point, everyone in the entertainment industry will be offered a job—some of them very tempting—that doesn’t compensate them, so you should know that in all but two circumstances, employers cannot ask you to work for free.

Those circumstances are:

If the employer is a nonprofit entity (like Greenpeace), a government agency (like your local fire department), or a religious or humanitarian organization (like church). If so, you can be hired as an unpaid volunteer. Obviously, that rules out 99 percent of employers.

If the employer meets all six of the Department of Labor’s standards for unpaid internships (detailed here). If so, you can be hired as an unpaid intern. The internship concept, however, is fraught with peril these days. Many companies are shuttering their internship programs because former interns are suing them, alleging that they should’ve been classified—and paid—as employees. At any rate, meeting the DOL’s standards is a high bar to clear and many companies won’t even try.

Although most employers can’t legally offer you unpaid work, they’re going to do it anyway, so the question becomes: Should you do it? Will the skills, experience or exposure gained from a job be sufficient to justify your time and effort? I can’t answer that for you because it’s a profoundly personal question. That said, here are some guidelines I’ve used in the past to determine whether an unpaid offer was worth taking.

1. How much time will it take me to do the work and will it take time away from other income-producing activities?

I’m more likely to accept an unpaid gig if it’s part-time and less likely to detract from other income-generating jobs. If I have to turn down a paying job for this one, I’m probably not going to take it. That said, If I have the time, and the only danger of taking an unpaid gig is less TV-watching time, I’ll consider it.

2. Would it look worse on my CV to have nothing in that spot?

People in the television and movie business can go long stretches without work. I hated having months-long gaps in my resume, so early in my producing career I often took unpaid gigs just to fill up the time. Ask yourself if a jobless stretch is an acceptable risk. You may want to fill that time in, even without pay, just to avoid justifying a blank space to a hiring manager.

3. Will I be holding out for a paying job that doesn’t exist?

Like the old saying goes, “In theory, theory and practice are the same. In practice, they are not.” Sure, theoretically I could find someone who would pay me for the same work, but comparing a theoretical reality against an actual one is a false choice. You should consider the choices you’re offered, not the ones you wish you were offered. If an employer offers me an unpaid job, I consider it on its own merits.

4. Is the exposure likely to generate better career opportunities?

You’ll never know for sure whether the exposure you get on an unpaid job will pay off in the long run. You just make the best decisions you can with the—often incomplete—information you have at your disposal. If it seems beneficial (or at least not harmful) it may be worth considering the unpaid offer. I always try to go with my gut on these kinds of decisions and in most cases, it’s worked out for the best.

5. Is the employer blowing smoke to get me take a job I shouldn’t?

Unfortunately, it’s hard to know if you can trust someone. The best thing you can do is learn about how the system works and try to get a clear and detailed understanding of what the job entails. Knowledge is the best weapon you can wield. For example, if you know that studios are likely to hire their own writers for a network show, you can argue against the unpaid offer or otherwise not take it.

You always deserve to be paid for your hard work, but taking an unpaid gig may have advantages that only you can see. If you want to take it, take it. Just know the risks, educate yourself on the system, and no matter what, get the offer in writing. MM

Have a legal question you want our advisers to answer in a future installment of Cinema Law? Send it into staff@moviemaker.com with the subject line “Cinema Law Question.”

Gregory R. Kanaan, Esq. is a New England-based attorney representing artists, filmmakers and designers in Massachusetts and New York. His practice focuses on entertainment and art law, as well as intellectual property issues. He has resolved disputes involving copyrights, publicity rights, trademarks, and contractual disputes for a wide range of independent filmmakers and design professionals. Prior to becoming an attorney, Mr. Kanaan was a television producer, creating documentaries and series for The Discovery Channel, Court TV, TLC, and A&E, among others. When not practicing law, Mr. Kanaan writes for his blog, The [Legal] Artist, which aims to educate creative professionals on the legal issues that affect them most. 

The answers to legal questions provided here are for general education and information purposes only, and are not legal advice or legal opinions. The information provided in this article is not intended to create a lawyer-client relationship between Mr. Kanaan and a reader.