By Roger J. Kaplan

Introduction

I’m sure entire psychology Ph.D. theses could be written about why creative folks looking to work together on a television or film script forge ahead with the collaborative work, but shy away from establishing the terms of their collaboration in a formal written agreement.

Excuses ranging from “but we are such old, good friends!” to “I don’t want to act like I don’t trust him/her!” abound. I’m not here to psychoanalyze these common excuses—nor am I in the least bit qualified to do so—but, rather, I am going to try to explain how a written agreement governing the agreement from its earliest stages is actually quite critical.

If one of you isn’t hiring the other(s) on the project, and you are each going to invest your time and creative and business energies into the project, the collaboration agreement will sketch everything out clearly and (hopefully) succinctly. The collaboration agreement should be thought of as the “constitution” of the joint creative endeavor between two or more participants: the agreement will memorialize everyone’s respective rights and responsibilities and governs the project as it goes through all the stages of development, production, and (hopefully) exploitation.

Even if the screenwriter collaborators haven’t settled on the exact details of their strategy, a collaboration agreement will be an invaluable guide as they move ahead through the process.

Frankly, screenwriting collaborators should embrace this process—because if they are on very different pages creatively or otherwise, as they work out these terms, wouldn’t it be better that they find that out now… before wasting months or even years on a doomed runaway train?

Plus, there is a core legal reason for a collaboration agreement: rights in and transfers of copyrightable matter (which includes pretty much any of the literary and filmed entertainment works contemplated here) must be established in writing. Mere informal, oral understandings simply don’t cut it! You’re professional screenwriters, so act like it.

Below, I will touch on the major issues that the team members need to discuss and address in their collaboration agreement.

The Work

It may seem obvious, but the participants need to agree on the core question of WHAT the format planned project actually is: Is it to be a web-based series of short vignettes? A docu-drama limited television series? A multi-camera family sitcom? A “noir” thriller feature film? Or…..?

Is the project going to be based on some pre-existing element(s)—perhaps a book or someone’s life story? If so, what are they, and who is going to be responsible for obtaining any necessary rights and consents? Obtaining underlying rights and consents could cost money—payments to the rights owner and probably legal fees. The team needs to agree who will pay those costs, and how (or if) such costs will get reimbursed or recouped—and by whom.

Further, the parties need to address whether (and how) the collaboration extends to future projects. Often, the parties will each want to be involved in works that are derivative of the initial project. Sometimes, the collaboration may be intended to extend as well to unrelated works and be the birth of an ongoing creative and business partnership.

Division of Labor

Frequently, the members of the team will take on discrete roles in the process of creation, development, and exploitation of the work. For example, a team collaborating on a television or film project may have one member who will write the script, and another who acts more like a producer, shopping the script around town to potential financiers, studios, networks and other buyers.

Naturally, there are any number of potential arrangements here, with different mixes of business and creative functions handled by the participants to one degree or another; and, in the example, above, the parties need to figure out if they are each acting as “writers” of the script, or if the “producer” is merely giving notes, without rising to the level of being a co-writer. There are no hard and fast rules other than to be clear.

If I had to pick one reason to have a collaboration agreement, it is this issue—if the parties haven’t thought through how they are really going to share the burdens of the project, the miscommunications and opportunities to develop resentments can be legion!

The Splits

The parties to the collaboration need to figure out how a number of rights and powers are shared.

– Ownership

The simplest arrangement is, of course, to share ownership of rights in the project equally, but—as with so many of the moving parts of a collaboration agreement—the rights split could vary for any number of reasons. Just a couple of examples are differences in experience and marquee value among the participants, or willingness to bear different shares of costs or burdens of development. It is important to note that the actual ownership of the produced film or a TV show will typically wind up in the hands of the third-party financier, studio or other buyers; however—on (albeit rare) occasion—the collaborators may retain certain rights regardless.

– Revenues

While, certainly, shares of rights ownership and shares of money often are tied together, many folks don’t realize there is no reason for that necessarily to be the case. Not only can the parties to a collaboration decide that money can be split into unequal shares, but they can also agree what receipts go into the “pot” that is shared, and what do not. For instance, on a film or TV project, the fees paid down the road by a studio for the team members’ respective services usually will be retained by whoever renders the services, and not be shared;

– Creative Control

Often, but certainly not always, shared in the same proportions as the business control, creative control goes to designating how the parties will decide whether the work is creatively ready to be shopped, and how or whether to make changes in the material. As any creative artist—or anyone who has worked with creative artists—can attest, this issue can be highly emotionally charged. The thing is that the explosiveness of that emotional charge only mounts if it is ignored, and the parties are doing their partnership no favors by leaving this ambiguous or unaddressed;

– Business Control

This is the power and authority to determine the business strategies of shopping the project, selecting the potential buyers to whom to pitch, negotiating deals with the buyer(s) and—ultimately—entering into the necessary rights agreements with the buyer(s). Among other things, the parties need to decide whether all of the collaborators must sign any such agreement with a buyer for it to be effective, or if one or more of the collaborators have the authority to sign on all the collaborators’ behalf;

– Tie-breakers

Typically, the parties will address what happens in the event that—despite the parties sharing creative and/or business controls—they cannot all agree on a creative or business decision. A tie-breaker could be as simple as one collaborator being given the final say, a majority vote of the collaborators (obviously, that only works if there are an odd number of collaborators) or bringing in some mutually-trusted outside party to break the tie.

Costs and Expenses

The parties need to decide what happens when one or another party wants or needs to incur costs and expenses regarding the project, and whether that can be recouped out of whatever revenues come along. Typically, the collaborators will agree that only expenses that have been pre-approved by all the collaborators can be recouped from the community “pot” of revenues. But, as with so many of these issues, there are any number of arrangements that are possible.

Death, Disability or Withdrawal of a Collaborator

Bad things happen in life, or someone realizes that a project is just no longer right for him/her (or some other commitment comes up). If the collaborators didn’t clearly address all this in advance in a written agreement, then the project will get sucked into a legal limbo, where no one will be willing to work on it further and certainly no one will be willing to buy it.

Often, the collaboration agreement will provide that the remaining collaborator(s) can proceed with the project, and can bring in other parties to fill in the hole left by the lost collaborator. Usually, the departing collaborator (or his/her heirs) will still be given a share of the money—typically half his/her original share if lost to death or disability, or some reduction negotiated in good faith if a voluntary withdrawal. However, the remaining collaborator(s) would own all rights and retain all creative and business controls.

Given how apocalyptic such a departure of a collaborator would be without a written collaboration agreement in place, I’d say that this a very close second in importance (to “Division of Labor”—above) as far as the compelling reasons for a collaboration agreement!

Attachments

Usually, the most lengthy section of a collaboration agreement is the provision setting out the respective rights of the collaborators to be attached to render services as the project is developed and produced by the financier, production company, studio or another buyer.

The main writer(s) will typically be attached to write the first rewrite of the project, and, perhaps, some or all of any necessary further writing on the project; some (or all) of the collaborators will be attached to work as creative producers (or creative executive producers, if a TV project); sometimes one or another collaborator will be attached to star or direct; and so forth.

The important nuance here is that the collaborators are agreeing with each other that none of them will make a deal with the buyer unless they all are able to make deals that at least meet the minimum agreed attachments.

The collaborators are each free to push for the best deals they can, and to try for deals for other sorts of services on the project (e.g., acting, additional writing, directing, producing, etc.), but they need to accept that, so long as the deal with the studio meets the minimum requirements legislated in the collaboration agreement, they will not be unreasonable and blow the project for everyone else.

Sometimes—though, I’d say, not usually—minimum fee levels for the services will be set out in the attachments section. More commonly, minimum requirements for the wording of screen and paid advertising credits will be established.

An important word of caution, though: each attachment that the collaborators agree with each other has the potential to make the project that much harder to sell, since—by definition—itreduces the ultimate buyer’s flexibility and may increase the cost of developing and producing the project. So, it is important for the collaborators—especially those with few or no produced credits—to be sensitive as to what are realistic requirements and to be open, when the time comes to deal with the buyer, to bending a bit and not killing a deal over not getting everything asked for. I would suggest discussing with representatives and experienced industry professionals.

Conclusion

It is far too easy for creative partners to put aside addressing some very important issues that may be uncomfortable as they are excitedly embarking on a new project. It may feel unseemly to focus on matters of splitting rights, money and control.

But, this is a classic example where the old expression “a stitch in time saves nine” applies. A little bit of awkwardness and directness, tackled upfront, can put to bed so many problems that can fester and grow to be quite destructive over the course of time. Without a collaboration agreement, any number of events could bring the progress on a project to a screeching and chaotic halt. With a collaboration agreement and the structure it creates for the venture, the partners can focus on making and exploiting the best project that they can.

None of the content in this article is intended as legal advice or legal opinion on any specific facts or circumstances, and you should not rely on any information in this article as a source of legal advice or legal opinion. If you are seeking legal advice or legal opinion, you should consult qualified legal counsel familiar with your particular legal and factual situation.

Why You Should Have A Screenwriter Collaboration Agreement

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