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  • Notes from Producers

    I signed a non-exclusive shopping agreement with a small producing team and received excellent notes from which I did some rewrites. This was your standard agreement, and I'm just asking generally--
    If and until they manage to sell my project, I retain the ability to use the [newly revised] script in any fashion I want, don't I? Presumably I can bring it to other producers, send it to competitions, or burn it in a huge bonfire if I want, right?


    I just wasn't 100% sure if their ideas --now incorporated into the story-- are fully mine to use to send to other producers or whatever.

    Thanks guys!
    Last edited by Done Deal Pro; 10-08-2020, 03:14 PM. Reason: Added tags

  • #2
    Re: Notes from Producers

    It depends on what the entire shopping agreement states. You should have had it specified in the contract that you retain all right to rewrites incorporating their notes. No one can help you without understanding what the language states.

    IME, agreements are usually tailored to the specific parties.

    for example this kind of statement (bolded below) acknowledges the the producers' contributions are considered THEIR copyrightable material to the screenplay. Which means you cannot use it without their express permission.


    1. In consideration of Producers’ supervisory and development services of the screenplay drafts for the Project, Producers’ contribution of Producers’ copyrightable material to the Screenplay and its drafts, and Producers’ efforts to set-up the Project, and for other good and valuable consideration, receipt of which is hereby acknowledged by you,
    I said no, to this.

    What it means is you cannot use their contributions. But they also can't use the draft either, because it's based on YOUR copyright protected material. This is especially important when considering to do a rewrite for free; you can negotiate, in lieu of payment now, that you retain ALL copyrights to the material. That's the best for the writer.

    What I don't understand, is why sign a non-exclusive agreement at all? It sounds like somewhere in the document you've granted them some kind of exclusive rights, otherwise why would they sign anything at all.

    I mean, what is the scope of the agreement? The entire POINT of a shopping agreement is to provide some kind of exclusivity, even if it's LIMITED in some way.

    Did you give them specific territories? Specific clients? Maybe I'm missing something? Did you work with a lawyer?

    I am not a lawyer and am not offering legal advice, but if it were me, the last thing I would do after signing a legal document is presume or assume anything.
    "Arguing that you don't care about the right to privacy b/c you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say." -- Edward Snowden

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    • #3
      Re: Notes from Producers

      I'm stuck on the first part where you mention it's a non-exclusive shopping agreement. By definition, a shopping agreement gives the producers exclusive control for X-amount of time. Either you're misinterpreting something or they screwed up (or don't know what they're doing, which is an entirely different conversation).

      As for the changes you made, it's like FA4 said. It depends on what your agreement says. Start researching what's called chain of title. I'm still not entirely clear what it means in terms of real-world ownership, but sometimes you'll get producers who will lay claim to a script if rewrites are done. I had an issue with a director who attached to one of my scripts because there was a clause in his agreement (drafted by his lawyers) that laid claim to money/exec producer title even if his suggestions were incorporated into a rewrite. (We got this removed).

      Anyway, go over your agreement and make sure you understand it. Get help from a lawyer, even one not in entertainment. All lawyers understand contracts to some degree.

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      • #4
        Re: Notes from Producers

        Originally posted by finalact4 View Post
        What I don't understand, is why sign a non-exclusive agreement at all? It sounds like somewhere in the document you've granted them some kind of exclusive rights, otherwise why would they sign anything at all.

        I mean, what is the scope of the agreement? The entire POINT of a shopping agreement is to provide some kind of exclusivity, even if it's LIMITED in some way.

        Did you give them specific territories? Specific clients? Maybe I'm missing something? Did you work with a lawyer?

        I am not a lawyer and am not offering legal advice, but if it were me, the last thing I would do after signing a legal document is presume or assume anything.
        I get a specific list of where it will be shopped but because it is not exclusive I can continue to shop it where I or my agent wants to.

        I'm no genius (clearly) and I know I could ask my agent, but I just wanted to get some understanding before I ask her stupid questions. The language appears to me allow me to keep whatever creative contributions but I thought I'd see if this was standard practice and that I haven't misinterpreted.

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        • #5
          Re: Notes from Producers

          Originally posted by docgonzo View Post
          but sometimes you'll get producers who will lay claim to a script if rewrites are done. I had an issue with a director who attached to one of my scripts because there was a clause in his agreement (drafted by his lawyers) that laid claim to money/exec producer title even if his suggestions were incorporated into a rewrite. (We got this removed).
          Thanks docgonzo -- That's what I wondered. I think when I signed, the language wasn't really meaningful --or frankly, that important to me. The terms are new and maybe I didn't examine the agreement as closely as I might, but in looking closer, I think I'm OK. Good learning process. Appreciate the help.

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          • #6
            Re: Notes from Producers

            Originally posted by SBdeb View Post
            I get a specific list of where it will be shopped but because it is not exclusive I can continue to shop it where I or my agent wants to.
            Usually with this kind of statement there is additional language that protects these producers and gives them "attachment" rights for a specified amount of time, say 24 months, after the expiration of the shopping agreement. The clause could state that because they approached specific entities first and used their connections the producers will automatically be attached as producers (whether you like it or not) if YOU enter into an agreement with any entity on their exclusive list after the shopping agreement expires.

            Hopefully, this language isn't in your contract though it seems standard. I believe this is part of "clearing the title."

            If the language is there, you are bound to it. It's so important to read and understand your contract carefully.

            Congratulations on your shopping agreement, SBdeb.
            "Arguing that you don't care about the right to privacy b/c you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say." -- Edward Snowden

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            • #7
              Re: Notes from Producers

              Originally posted by SBdeb View Post
              I signed a non-exclusive shopping agreement with a small producing team and received excellent notes from which I did some rewrites. This was your standard agreement, and I'm just asking generally--
              If and until they manage to sell my project, I retain the ability to use the [newly revised] script in any fashion I want, don't I? Presumably I can bring it to other producers, send it to competitions, or burn it in a huge bonfire if I want, right?
              I just wasn't 100% sure if their ideas --now incorporated into the story-- are fully mine to use to send to other producers or whatever.

              Thanks guys!
              There's legality and then there's common practice. Whatever the situation legally, the fact is, almost no one will touch your script if there's a muddy chain of title (which there now is, given that you've incorporated these producers' notes into your rewrite). Unless it's explicitly stated in the shopping agreement that you get the revised script back free and clear at the end of the term, these producers can forever make a claim that they have to be part of any future option or sale.

              I will add, although no one asked for my opinion, that I DETEST this element of the business. Writers give writers notes all the time for free, expecting nothing except that the favor will one day be returned. But as soon as you call yourself a "producer," giving notes somehow magically attaches you to a project for life (because producers think "giving notes" is their superpower, instead of something that almost anyone can do).

              In any case: if these producers are cool, you may be able to disentangle yourself from them via a gentleman's agreement. If not, well... chalk it up to a learning experience. The lesson: this is why you don't develop projects for free.

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              • #8
                Re: Notes from Producers

                Originally posted by AnyOtherName View Post
                There's legality and then there's common practice. Whatever the situation legally, the fact is, almost no one will touch your script if there's a muddy chain of title (which there now is, given that you've incorporated these producers' notes into your rewrite). Unless it's explicitly stated in the shopping agreement that you get the revised script back free and clear at the end of the term, these producers can forever make a claim that they have to be part of any future option or sale.

                I will add, although no one asked for my opinion, that I DETEST this element of the business. Writers give writers notes all the time for free, expecting nothing except that the favor will one day be returned. But as soon as you call yourself a "producer," giving notes somehow magically attaches you to a project for life (because producers think "giving notes" is their superpower, instead of something that almost anyone can do).

                In any case: if these producers are cool, you may be able to disentangle yourself from them via a gentleman's agreement. If not, well... chalk it up to a learning experience. The lesson: this is why you don't develop projects for free.
                This is the answer and how I feel too.... Without a rock solid agreement that the notes belong to you, you shouldn't show the revised script to anyone, just your original. I have a friend who is facing having to pay a former producer who has claimed some authorship because he continued to use the notes after the option lapsed. He didn't have an agreement and he's on the hook now, plus this pissed off the new producers. It sucks, but this happens every day. If you want to get the script out to other producers, send your original... then get their notes.

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                • #9
                  Re: Notes from Producers

                  Okay all, I thank you for some excellent feedback and insight into this. I looked closer at my agreement and it appears that I can use the notes and that I do own the changes with no encumbrances (presumably unless they sell the project).

                  I appreciate the warnings, which I should have explored and asked prior to signing. For years, I've heard these warnings and basically didn't perform due diligence, either out of ignorance or laziness, so it would have served me right to be put in a box of my own making but at least the language protecting me is there. It's kind of like not really understanding something until your right the f*ck inside it... how it's just not that important until you are literally THERE.

                  It is interesting that some of you were not familiar with the non-exclusive part of the agreement.

                  I have to say that when I was first approached about this [shopping agreement] by my agent, I was not interested in signing. Then they came back making it non-exclusive and it seemed at that point 'what do I have to lose?' I retain the right to sell or option it on my own outside of the specified places that they must notify me of in advance.

                  Is this non-exclusive part not very popular? Is it newer?

                  Anyhow, thanks again!

                  Comment


                  • #10
                    Re: Notes from Producers

                    Originally posted by EdFury View Post
                    This is the answer and how I feel too.... Without a rock solid agreement that the notes belong to you, you shouldn't show the revised script to anyone, just your original. I have a friend who is facing having to pay a former producer who has claimed some authorship because he continued to use the notes after the option lapsed. He didn't have an agreement and he's on the hook now, plus this pissed off the new producers. It sucks, but this happens every day. If you want to get the script out to other producers, send your original... then get their notes.
                    ⇧ This ⇧
                    “Nothing is what rocks dream about” ― Aristotle

                    Comment


                    • #11
                      Re: Notes from Producers

                      Originally posted by SBdeb View Post

                      It is interesting that some of you were not familiar with the non-exclusive part of the agreement.

                      I have to say that when I was first approached about this [shopping agreement] by my agent, I was not interested in signing. Then they came back making it non-exclusive and it seemed at that point 'what do I have to lose?' I retain the right to sell or option it on my own outside of the specified places that they must notify me of in advance.

                      Is this non-exclusive part not very popular? Is it newer?

                      Anyhow, thanks again!
                      It's not a non-exclusive agreement if it gives exclusive rights of any kind. It's a limited exclusivity because of the bolded part.

                      Notifying you in advance with a submission list is not the same as being REQUIRED TO SEEK YOUR APPROVAL in advance of who they wish to submit the project.

                      This is excellent advice...
                      AnyOtherName:
                      Unless it's explicitly stated in the shopping agreement that you get the revised script back free and clear at the end of the term, these producers can forever make a claim that they have to be part of any future option or sale.
                      This statement by you concerns me:
                      Okay all, I thank you for some excellent feedback and insight into this. I looked closer at my agreement and it appears that I can use the notes and that I do own the changes with no encumbrances (presumably unless they sell the project).
                      That's not how contracts work. Either it states you HAVE the revision rights or you don't. If it doesn't explicitly state it, that doesn't automatically mean you do. They could claim that their contributions are protected copyright material. Maybe it does say you explicitly have the rights; I hope it does and your statement was softened from the actual language.

                      Leaving ambiguous statements in your contract is your (the writer's) responsibility to correct before you sign it.

                      Yes, you have an agent. Yes, you have a lawyer. But it's your name on the document. If you don't understand what it says, that's your fault. This is exactly the reason people, not just writers, are taken advantage of... they think someone else has it covered.

                      I did contract work for a distributor with exclusive rights and territories and trust me, there are all kinds of ways that box you into a corner. It takes a good understanding of the language to ensure you're protected. And if you don't have a good understanding of the intention behind how a clause will be used, it can place you at a disadvantage of which you aren't even aware.

                      An additional problem might arise if you haven't stated they MUST HAVE your authorization to proceed with the submission list; you could leave yourself open to the producers submitting it blind to someone where you, or your team, may have a stronger relationship-- now you've got a producer attached that may threaten its success of getting purchased because you have an automatic producer attachment.

                      Just a few things to consider. Hopefully, much of these cautions don't apply to your agreement.
                      "Arguing that you don't care about the right to privacy b/c you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say." -- Edward Snowden

                      Comment


                      • #12
                        Re: Notes from Producers

                        Originally posted by SBdeb View Post
                        I signed a non-exclusive shopping agreement with a small producing team and received excellent notes from which I did some rewrites. This was your standard agreement, and I'm just asking generally--
                        If and until they manage to sell my project, I retain the ability to use the [newly revised] script in any fashion I want, don't I? Presumably I can bring it to other producers, send it to competitions, or burn it in a huge bonfire if I want, right?

                        I just wasn't 100% sure if their ideas --now incorporated into the story-- are fully mine to use to send to other producers or whatever.

                        Thanks guys!
                        Under the Copyright Act, a person is considered an author or creator of a protected work ONLY if they have actually created part of that work. A producer giving notes is not the same thing as putting pen to paper (or fingers to keyboard, as the case may be). Under the Act, only the actual WRITERS (whose work may incorporate those mere ideas) have a default copyright in the project, in toto.

                        The only way around this might be (and I stress MIGHT be) a contract in which the actual screenwriter (i) expressly acknowledges such a person as a co-author WITH the screenwriter, (ii) expressly acknowledges that the actual screenwriter is incorporating such notes as "works-made-for-hire" (which, incidentally, requires a written instrument using those magic words), or (iii) expressly grants to such person an ownership interest either in those changes, or in the work as a whole. While language such as this may constitute the same thing as Section (iii), I do not know how enforceable such language actually is, in light of the Copyright Act as a whole.

                        I have ALWAYS encouraged writers to do none of the above. Unless the producer is willing to sit down and actually type script pages incorporating his/her own notes (in which case you need a collaboration agreement in place before they do that), then they should not obtain any ownership interest in the script (in whole or in part) unless they purchase it from you through either an option contract or a purchase contract.

                        Comment


                        • #13
                          Re: Notes from Producers

                          Originally posted by docgonzo View Post
                          I'm stuck on the first part where you mention it's a non-exclusive shopping agreement. By definition, a shopping agreement gives the producers exclusive control for X-amount of time. Either you're misinterpreting something or they screwed up (or don't know what they're doing, which is an entirely different conversation).

                          As for the changes you made, it's like FA4 said. It depends on what your agreement says. Start researching what's called chain of title. I'm still not entirely clear what it means in terms of real-world ownership, but sometimes you'll get producers who will lay claim to a script if rewrites are done. I had an issue with a director who attached to one of my scripts because there was a clause in his agreement (drafted by his lawyers) that laid claim to money/exec producer title even if his suggestions were incorporated into a rewrite. (We got this removed).

                          Anyway, go over your agreement and make sure you understand it. Get help from a lawyer, even one not in entertainment. All lawyers understand contracts to some degree.
                          Shopping agreements are an ugly bug. I personally believe that whether they are exclusive or non-exclusive, they are unenforceable as illusory promises. In effect, the typical shopping agreement merely consists of a writer giving a producer, production company or development company permission to take a script (or other lit material) around to the studios. But unless it actually REQUIRES something from said producer(s), there is no consideration and the contract is unenforceable because it constitutes an illusory promise. In which case, under the Copyright Act, the IDEAS in those notes (ideas which a writer incorporates into HIS/HER script) do not grant to said producer any ownership stake in the script (or the parts of it incorporating those notes), any more than would be granted to a bum on the street if he gave you a good idea for a scene.

                          Even if the notes are detailed and come through a written channel, those notes could conceivably constitute a derivative work of a WRITER's work, and so the writer's incorporation of those notes would not constitute infringement of the producer's written work (because it locks in at the original work).

                          CAUTION: While I am an attorney, the foregoing constitutes merely my personal observations and opinions on the law, and is not nor should be construed as any actual legal advice or an unequivocal statement of the law. Please consult with your own counsel.

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