Archive for March, 2010
What is an “option” of a script or novel?
Sunday, March 21st, 2010
When screenwriters and filmmakers come together, great ideas are shared. Often the writer has a script that the filmmaker wants to make.
A literary “option” is the natural progression. An option is an agreement that grants the filmmaker, producer, or anyone interested in trying to develop the story into tangible form (into a film or TV show, for example), – grants them the exclusive right to “develop” that script for a specified period of time.
During the development process many different things can happen: the filmmaker or producer may try to raise money to actually make the project; they may attempt to attach a director or acting talent to the project; or they may shop the project within the industry to determine whether there will be a market for the project once completed. Because of the extensive efforts necessitated by this process, the person making those efforts wants to insure they have the exclusive right to the project for a specified period of time.
An option agreement can contain many different terms and contingencies, including price, duration and what happens if the option expires, or if the relationship elevates to the purchase of the script or story.
Option agreements can be traps for the unwary, potentially locking up a project for an unreasonable amount of time, and potentially for little or no compensation.
An option agreement should always be in writing, and should balance the advantages to both parties of having the project in development, with protections to the parties (and particularly the writer) should the development stall unreasonably.
Because option agreements have many moving parts, and involve strategy regarding duration and compensation, they should be entered carefully, and with the advice of an experienced entertainment attorney looking out for YOUR interests.
It is indeed great to have a project on it’s way to being made, but a purgatory to have the project locked up and stalled, or to be taken advantage of by insufficient compensation or overreaching terms.
How much does an entertainment lawyer cost?
Tuesday, March 9th, 2010
That depends on the services you’re procuring…
After my last post encouraging creative professionals to involve an entertainment attorney early in their projects, I’ve received inquiries and comments about “cost” being the primary reason lawyers aren’t involved in projects sooner. I’ll outline typical cost scenarios below, but first let me say that avoiding lawyer costs at the beginning of a project usually proves to be a false economy.
Beyond a free, brief consultation, which is frequently offered, basic legal advice by a knowledgeable entertainment attorney can be had for a few hundred dollars, a small amount when compared to the countless hours, effort and talent of creative professionals. And while indie filmmakers and upcoming creative types frequently don’t have “a few hundred dollars” laying around, attorneys may accept credit cards or installment payments.
But most importantly, neglecting to get basic legal help could, and often does, cost far, far more in the long run. Without the proper contracts, releases, permissions, etc., it may be that the hard work of the creative genius simply cannot be monetized – can’t be optioned, can’t be sold, can’t be distributed. An especially tragic end considering many artists hope for somemonetary gain from their present work, to finance their larger dreams and future work. So no remuneration from the present work means no financial foundation for the future work.
But specifically, what does it cost to engage an entertainment attorney? It varies significantly by location, experience, and the work to be done, but three or four arrangements are common – but like everything else, may be negotiable.
Option 1: The Consult – Attorney’s usually will offer a brief, free consult, to get information from you to determine your legal problem or needs, and to confirm that they can help. During this free consult, some general observations may be made, but specific opinions and guidance will rarely be offered.
As Abe Lincoln said, “a lawyer’s time and advice are his (or her) stock and trade.” So few lawyers are likely to give away knowledge and advice for which other clients pay actual cash. And that position is further justified when you remember that sometimes lawyers are sued when the advice they gave was free! (Note the disclaimer on this blog). That probably wouldn’t be a “winning” lawsuit, but it’s certainly an unwanted distraction. So lawyers, always loath to open themselves up to liability, are especially leery of doing so for absolutely no compensation.
So after the brief “free” consult, paying for the lawyers’ time will likely come up. Some entertainment attorneys will give you an hour of their time – a la carte – for a fee, often between about $350 per hour to $600 or more per hour (the closer to L.A., New York, or other major cities, generally the higher the hourly fee). However, sometimes lawyers will require a “retainer” representing at least several hours worth of his/her time – for example, a retainer of $1000 or more, against which the lawyer will bill time as it is used for your needs. Often the retainer can be paid by credit card. And if you don’t use the time represented by the retainer, it may, or may not, be refundable. As the relationship moves from simply discussing your needs to drafting contracts, negotiations, etc., the lawyer will “bill” his time against the retainer amount held. If and when the retainer amount is exhausted, you will likely be asked to refill the cup with another retainer.
Option 2: The Fixed Fee – some legal work is relatively straightforward, and therefore the time and effort involved more easily knowable. For these types of things, for example a single contract or formation of an LLC or corporation, an entertainment attorney may charge a fixed fee. The fee will again vary depending on the location and complexity of the project. A simple work-for-hire screenwriting agreement – less. A complex document for distribution of a film – more. The lawyer will likely request a retainer in the amount of the fixed fee before beginning work.
Option 3: The Percentage – Particularly in situations where creative types have enough work to support a percentage agreement, entertainment attorneys will often sign on as “your lawyer” for a percentage of earnings. In exchange for that percentage, the attorney is committing to whatever legal work you may need related to your profession, whether writing, producing, acting, directing, music, etc. Legal work outside the orbit of your profession – getting you out of jail, for example – would likely fall outside the percentage agreement. While this option affords legal services for creative professionals that may not have the cash to pay for the services they need, few lawyers will sign on for this type of deal without the creative having a steady income – or at least the likelihood of a steady income in the future. In that case, the lawyer, like the talent agent or career manager, is banking on the present or future success of the creative pro.
Option 4: Production Counsel – Very often a funded film will engage a lawyer as “Production Counsel,” to handle all legal needs of the film, through pre-production, post-production and distribution. For a flat fee, often tied to a percentage of the film’s budget, the lawyer may draft all necessary contracts and agreements, handle or participate in negotiations of various aspects of the production, and also serve as general adviser on legal and business issues.
Again, these are the general scenarios. As with most things, the details may be negotiable.
But even a few hours of knowledgeable advice and a core of carefully drawn contracts can save the creative professional countless dollars, often allowing the artist to step up and into the next, larger project.