Q: I wrote a screenplay and got a producer interested. He said he could generate interest in getting it funded. Well, it looks like a deal may happen! But there’s a sticking point. When we first started working together, I asked him to get me a contract and he still hasn’t. Every time I ask, he says a lawyer is working on it, but it’s been months. Should I trust that it’s on its way?
There’s a saying I heard recently that I think sums up your situation perfectly: “contracts before content.” You should never begin working with someone until you have a written commitment from them. Never ever. Why? Because you don’t know the person; you haven’t defined your roles; you leave too many issues undecided, which creates unnecessary risk. One reason written contracts are useful is they provide structure and formality, attributes that are crucial in a business relationship.
It’s certainly possible the contract is forthcoming. Lawyers aren’t exactly known for efficiency and I personally would rather something be done right the first time—even if it takes a while—than deliver a subpar contract that could open my client to liability. I can’t tell you whether you should trust the producer, but I can tell you that I rarely trust anyone when we first start working together. There are just too many unknowns at that early stage. That’s why I insist on written contracts with everyone I work with, even people I eventually come to know and trust.
A valid contract only requires three things:
- An offer from one party;
- Acceptance by the other party;
- Something given in exchange (we lawyers call this “consideration”). That something could be a promise of money, services, property, stock or other tangible or intangible assets.
As you can see, trust isn’t part of the list. That’s largely because the courts exist to enforce breaches of contract. After all, when you have the force of law backing you up, you don’t really need trust.
In this case, it’s hard to tell whether you had an oral agreement the producer acted upon, or the producer simply started working before you came to a final understanding, but either way, I think there’s two things you can do to right the ship before it veers further off course.
1. Know your rights. As the screenwriter, and thus the sole copyright owner, the film cannot move forward without your approval. The producer has no ownership rights and cannot sell the rights to the script or begin producing it until you’re on board. Under U.S. Copyright law, only the copyright holder has the right to distribute, convey, sell or license the work. That’s you. You’re the lynchpin.
2. Know your needs. He agreed to get you a written contract and he hasn’t done that. If you’re not happy with the way things are currently going, tell him that. Tell him what you want and be prepared to walk if he doesn’t give it to you. By the way, while the producer is typically the one who provides contracts, that doesn’t mean you can’t draft one up (or have a lawyer do it) and give it to him to sign. If you like the guy and simply feel like he’s ditzy, there’s no reason you can’t grab the rudder and continue to work together. In my experience, most people don’t act out of malice, but thoughtlessness. He’s probably not trying to cut you out the deal. More likely, he’s overzealous and a little wild—not the worst qualities for a producer to have if you’re trying to get an indie film off the ground.
Whatever you tell him, though, do it in writing. That way you can trace the conversation. And from this point on, always get a contract in writing before you start working, even if you have to stop the whole project while you wait. Nothing is ever so urgent or important that it can’t be memorialized in writing beforehand. And if you’re working with someone who refuses to sign a written agreement, run like hell in the other direction. That’s someone who doesn’t have your best interest at heart.
Remember, trust has to be earned. It requires both sides to prove their bona-fides and act in good faith over time. It can’t be developed overnight. Whenever I ask for a written contract from a new partner and they respond with, “What? You don’t trust me?” My response is usually, “Of course I don’t! But if this deal goes well, I might start.” MM
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Gregory R. Kanaan, Esq. is a Boston-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.