Developement Notes and Chain-Of-Title

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  • #16
    Re: Developement Notes and Chain-Of-Title

    Originally posted by Bono View Post
    Contracts are one thing -- but often working with a producer involves zero paperwork. That is OP's issue he's trying to figure out.
    There is ALWAYS paperwork. Emails, attachments, notes, are paperwork.

    I referred to "contracts/documents." Emails are documents which can be admissible in court if the email was sent by the opposing party. I'm assuming he's sending and receiving notes via email. Is that not a fair assumption?

    You do not want to imply that you are agreeing to something you are not. Simply not responding might not hold up. The fact that one hasn't disputed something may imply you have agreed to it by proceeding to do the work.

    I don't know what the exact situation is for Kintnerboy. The point is, you want to avoid litigation at all costs.
    "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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    • #17
      Re: Developement Notes and Chain-Of-Title

      Originally posted by finalact4 View Post
      There is ALWAYS paperwork. Emails, attachments, notes, are paperwork.

      I referred to "contracts/documents." Emails are documents which can be admissible in court if the email was sent by the opposing party. I'm assuming he's sending and receiving notes via email. Is that not a fair assumption?

      You do not want to imply that you are agreeing to something you are not. Simply not responding might not hold up. The fact that one hasn't disputed something may imply you have agreed to it by proceeding to do the work.

      I don't know what the exact situation is for Kintnerboy. The point is, you want to avoid litigation at all costs.
      But legally, that's JZ's whole point of memorializing the understanding up front before any of the work begins (which is why I would fall on his side of over-agreeing versus relying on a handshake deal, but I'm also a recovering attorney so I may be biased). The best way to head off litigation in the future is to leave the writer and producer's collective understanding of who is contributing what to the process as unambiguous as possible. I would not feel secure hoping to rely solely on the "paper trail" as my only proof.

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      • #18
        Re: Developement Notes and Chain-Of-Title

        I'm not a lawyer. But I just spent thousands squaring away chain of title for a screenplay I just optioned. I can't mention any specific details since I'm posting under my real name, but here is what I learned.

        Chain of title deals with two real-world issues: Copyright registration & neutralizing the possibility of lawsuits, even if unfounded. The fight mentioned is probably a result of mixing up these two things.

        For Copyright registration, the biggest issue is whether the work is a 'ground zero' original work. If it is, this registration is what kicks off the chain. Each additional transaction in regards to that registration gets 'recorded' with the Copyright office with what is known as a 'short form assignment'. Think of these as keeping track of the transfers of title.

        In regards to this very specific topic of Copyright, if a producer helps out a writer with notes, it wouldn't count as creating an original work on the part of the producer. For that, the contributions would have to meet 3 very specific criteria: (1) fixation, (2) originality, and (3) expression. Since the producer isn't the one writing (fixation), and most likely also not using their own words (expression), they would be automatically disqualified. So Craig would be right.

        But something else might be created under that scenario: a business interest. That's where the other real-world concern kicks in: unwanted lawsuits.

        Solid Chain of title also guarantees that there is no possible lawsuit that would survive initial dismissal with prejudice. In other words, if there is ANY chance that someone could actually make a case that a judge might let proceed in court, then it has to be dealt with. The most common method is through a release. If a low-rent producer 'helps' a young writer, and then they part ways, and then that writer goes on to get the movie made and it becomes a hit... there is almost a 100% chance the producer will come knocking on the writer's door seeking his 'share'. In this scenario, John is right. But of course a distributor would never allow this to happen in the first place because they have very stringent chain of title requirements.

        One more twist: there is also a high-up level in the industry where legal matters take a back seat to personal reputations. If you are at that level, it doesn't really matter what the contract says. People operate on trust and through quick one sentence email go-aheads or quick phone calls. They know the 'suits' will eventually have them sign the long form contract. In the case of Craig, Chernobyl was already streaming and causing a stir when he hadn't even signed the contract yet. In this reality, Craig is right. Anyone giving him notes would never dare sue him over such a stupid thing.

        So I think John's advice holds for regular mortal writers who are dealing with Hollywood's underworld. Once you get to the A-level, things quickly become more informal. For example, most top agents never 'sign' anything with their clients. It's all done through a literal handshake (at least before Covid).
        Manfred Lopez Grem
        WGA Writer - Director | Zero Gravity Management

        REEL - IMDB

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        • #19
          Re: Developement Notes and Chain-Of-Title

          Great information, JoeBanks and ManfredLopez.

          Good luck with your option, ManfredLopez.
          "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


          • #20
            Re: Developement Notes and Chain-Of-Title

            Originally posted by manfredlopez View Post
            In regards to this very specific topic of Copyright, if a producer helps out a writer with notes, it wouldn't count as creating an original work on the part of the producer. For that, the contributions would have to meet 3 very specific criteria: (1) fixation, (2) originality, and (3) expression. Since the producer isn't the one writing (fixation), and most likely also not using their own words (expression), they would be automatically disqualified. So Craig would be right.

            But something else might be created under that scenario: a business interest. That's where the other real-world concern kicks in: unwanted lawsuits.

            Solid Chain of title also guarantees that there is no possible lawsuit that would survive initial dismissal with prejudice. In other words, if there is ANY chance that someone could actually make a case that a judge might let proceed in court, then it has to be dealt with. The most common method is through a release. If a low-rent producer 'helps' a young writer, and then they part ways, and then that writer goes on to get the movie made and it becomes a hit... there is almost a 100% chance the producer will come knocking on the writer's door seeking his 'share'. In this scenario, John is right. But of course a distributor would never allow this to happen in the first place because they have very stringent chain of title requirements.

            One more twist: there is also a high-up level in the industry where legal matters take a back seat to personal reputations. If you are at that level, it doesn't really matter what the contract says. People operate on trust and through quick one sentence email go-aheads or quick phone calls. They know the 'suits' will eventually have them sign the long form contract. In the case of Craig, Chernobyl was already streaming and causing a stir when he hadn't even signed the contract yet. In this reality, Craig is right. Anyone giving him notes would never dare sue him over such a stupid thing.

            So I think John's advice holds for regular mortal writers who are dealing with Hollywood's underworld. Once you get to the A-level, things quickly become more informal. For example, most top agents never 'sign' anything with their clients. It's all done through a literal handshake (at least before Covid).

            This is good stuff, thanks.

            I know that there is a contingent of writers (almost always pros) who say "never work for free, ever". And I hear that. And I understand that. But it's simply not realistic for me right now.

            I am wondering exactly how, to someone like John Zaozirny (or anyone who agrees with him), this scenario plays out exactly.

            1) I send a query to a producer (not a predator, an established prod co who works with A-listers).

            2) They reply "please send".

            3) Four weeks later they get back "Like the script. It's not quite there yet, but there is a movie here. Attached are our thoughts."

            In my mind, according to Zaozirny, this is the point where I'm supposed to reply "Sorry, I don't accept unsolicited notes, let me get my lawyer involved if you want to proceed."

            Which would likely result in me being ignored, blocked and ghosted, I'm sure. Yet it seems like that's exactly what JZ is saying I have to do.

            If this is true, it seems like it should have been a sticky post on Done Deal like 15 years ago, or at least gotten a chapter or two in one of William Goldman's books. But it hasn't, which leads me to believe that this whole fear is wildly overblown. Yet it seems like it rates a discussion.

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            • #21
              Re: Developement Notes and Chain-Of-Title

              Continuing my post from above with additional questions...

              In my very specific case, the first round of notes came back with exclusively non-creative thoughts.

              For example:

              "The protagonist isn't compelling enough", "Scene 22 is implausible", "The third act is a total loss"

              I almost felt like those notes were a test of some kind, like if I handed in a draft that was just as problematic, they would have severed ties right there, but they liked almost everything I changed.

              The second round of notes were much more specific-- "Why does the antagonist have a gun? We think it should be a knife."

              So now I have a draft that they have creative input on. So the question is, should I have insisted on a contract before the second re-write, or is the fact that I read the notes in the first place the problem here?

              My thought was that if this producer decides to move on to other projects, I'm okay as long as I stick to my original draft I had before any notes. Zaozirny says that's not true.

              I want to stress here that none of this was done by me out of naiveté... I assume that as an un-produced, non WGA writer things are not going to go 100% my way the first time out no matter what, so I'm willing to play along. Worst case scenario is that I learn how not to do it next time.

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              • #22
                Re: Developement Notes and Chain-Of-Title

                We need someone that's been there like a pro -- but we are busy chasing the last one or two off the board -- so we are out of luck. This seems like a great twitter question -- maybe something can ask John Z and Craig or John A about.

                What I know for sure writers go to pitch stuff all the time and don't get the job and those ideas can wind up in the movie.

                So I find it so frusterating that a person can give notes, the writer does them -- all for free and then the person giving notes somehow has a claim to the work...

                If they paid to have a claim, I get it. But if it's just the dangling carrot...

                This business is not for the faint of heart.

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                • #23
                  Re: Developement Notes and Chain-Of-Title

                  Absolutely this needs to be a whole Scriptnotes episode.

                  And of course, the same writers who say never "Never work for free" will spend 50 hours on a pitch (3x a year) that goes nowhere, but that's okay.

                  And yes, it is a shame that Lowell will be chased away (even though he wasn't helping here anyway. This thread is too sane and boring for him).

                  I have one more question for the masses--

                  Lets say you have a script that you've rewritten 20x over the course of 5 years. Certainly you are not going to re-register the copyright every for every single draft.

                  But what is the criteria? Is it when you change more than 25% of the pages? Is it when you change the ending? Do you do it once a year on the script's birthday?

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                  • #24
                    Re: Developement Notes and Chain-Of-Title

                    Prefacing this by saying that John Z seems like a legit and well meaning guy who genuinely wants to help unrepped writers.

                    ... But I'd be really annoyed if I sent my manager a script and his feedback was focused on my use of CONTINUOUS

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                    • #25
                      Re: Developement Notes and Chain-Of-Title

                      Originally posted by kintnerboy View Post
                      But what is the criteria? Is it when you change more than 25% of the pages? Is it when you change the ending? Do you do it once a year on the script's birthday?
                      This may not be what you are doing or have done, but I would generally recommend registering a script only around when you are thinking about starting to send it out so you have the closest version to what has been seen with/at the copyright office on file.

                      From there, you do not need to re-register every year. I'm sure different people & legal experts will give you this percent or that percent to work from, but I'd tend to lean on a good 30% changed, if not a bit higher. Changing the last ten pages or so, shouldn't warrant registering it again, since you still should have the various drafts, copies of emails, etc. as support evidence.

                      Not that it's ever easy, but try to think for a moment about how someone seeing it all for the first time would react in terms of judging the similarities. Did your romantic comedy suddenly become a sci-fi musical? Did your lead change from a male to a female and the location go from Earth to Mars? Or did you just move the story from LA to NYC or vice versa? Is it more cosmetic or is it much more substantial?

                      In other words, how "unrecognizable" has it become from the previous draft? Picking that "when" may not seem like the easiest thing, but again, think about how drastic & dramatic the changes are relative to one another. If it's truly gnawing at you, then possibly ask a couple of friends to read the two drafts. Or better yet, try to get some legal advice and preferably from someone in the entertainment field and who is knowledgeable about copyright law.

                      Luckily, registering your copyright doesn't cost a ton of money, but I think it's more than safe to say, you don't have to go overboard with re-registering it.
                      Will
                      Done Deal Pro
                      www.donedealpro.com

                      Comment


                      • #26
                        Re: Developement Notes and Chain-Of-Title

                        Kintnerboy,
                        John Zaozirny is not a lawyer and neither am I. During the entire thread he never gave specific detail of his writer's situation. Keep that in mind. It may not apply to you. John is definitely well intentioned, but he's not a lawyer.

                        If you're this concerned you should contact an entertainment lawyer.

                        If you have not assigned the rights to the producer, you own the original and all rewrites. Have they ever said they want to attach as producers? You need to review the language in your correspondence to determine if you (or they) have implied a development relationship exists.

                        What you should do is immediately make it clear that you appreciate their notes, but that you want to make sure you are all on the same page...

                        so you could do something like the below in an email...

                        Producer acknowledges and agrees that, unless and until an Option is executed and is duly and timely exercised, all components of the Work titled (insert your title) and any revisions thereto made by any person or entity are and remain creator’s sole property, without encumbrance of any kind.

                        That would make it clear. Don't be afraid to stand up for your rights. This is your work. You're doing them a favor. If they do not want to acknowledge this, then tell them you will need to sever your relationship with them.

                        If at some point you enter into an option, then you will want language (your lawyer will provide) in that option that if the option is NOT exercised then all rights to the "work" including any versions created during the option period remain with you as seller/creator without encumbrances.

                        IMO, you need to do some research on your own and not take anyone's word for it, including mine, or a pro writer. We are not lawyers. You need to understand your rights and how to protect them. It is worth the expense of a good entertainment lawyer.

                        A lawyer may or might not sign you on, initially, as a client with a 5% take until you have an option in hand, but they will work with you on an hourly basis.

                        Good luck.
                        "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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                        • #27
                          Re: Developement Notes and Chain-Of-Title

                          Thanks, Will.

                          In my case, I have not re-registered (though I might now) even though I have changed more than 50% of the actual words (dialogue, descriptions, etc).

                          None of my major plot points (inciting incident, mid-point, ending, reversals, etc) have ever changed.

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                          • #28
                            Re: Developement Notes and Chain-Of-Title

                            Originally posted by finalact4 View Post
                            IMO, you need to do some research on your own and not take anyone's word for it, including mine, or a pro writer. We are not lawyers. You need to understand your rights and how to protect them. It is worth the expense of a good entertainment lawyer.
                            You're right of course, and I appreciate your thoughts.

                            This is actually not something that I'm overly concerned about (for myself), and I have done tons of research. I just think it's an interesting topic that I've never seen discussed in 17 years of Done-Dealing, or heard any pro discuss, despite the abundance of blogs and vlogs covering Option Negotiation 101.

                            I guess my major hangup with Zaozirny was that his message was: If you are a writer who has taken notes from a producer, and then enacted those notes, you have a legal responsibility to disclose that interaction in any future option / sale agreements.

                            A statement is either true or it isn't.

                            You can qualify it by saying "I'm not a lawyer", or "This only applies sometimes" or "Only to non-pros", but he didn't. He also didn't retract it or take it down.

                            At a certain point, the answer to every question becomes "Call a lawyer" (which I suspect is just how they want it!).




                            *As a complete side note, one of the notes I got from the producer was STOP USING CONTINUOUS IN SLUGLINES... so apparently this is a big thing with some people.

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                            • #29
                              Re: Developement Notes and Chain-Of-Title

                              Speaking from experience, there are issues that weren't clearly stated in the tweet thread, but do surface that often depend on the producer you're working and how far they're wiling to push things. JZ is saying that a producer will "lay claim" to a project if they've done any development work on it; not ownership, but if a deal goes through on that iteration of the script (or one stemming from it), they might try to shoe horn their way onto the project as a producer and get a producer fee from the studio making the offer. If you don't have paperwork that explicitly says that their association with the project ends after X-amount of time regardless of how much development work they've done, then that producer might surface down the road and become a headache if the writer manages to get a deal elsewhere.

                              Further to that, I've heard of at least one producer (who I almost worked with) trying to take screenwriting credit on projects they developed. Pretty shady, but this guy is pretty big and, in all honestly, lovely on the phone.

                              Anyway, the reason Mazin, et al, are getting worked up is because they can't fathom this happening to them. And that's because it likely doesn't. They're established, high-profile writers with a track record. Doubtful a producer tries to pull this **** with them (not to mention they secure a deal with money up front before working anyway.) But this is a problem for writers trying to break in, because producers (often rightly) know that they won't put up much of a fight. After all, this is their big break! Why cause waves and **** things up?

                              So really all JZ is saying is get an agreement with a producer before attaching them to your script that clearly states your association is done with them after the term expires. Otherwise, they might pop up later when a deal is about to go down and potentially make things difficult.

                              Comment


                              • #30
                                Re: Developement Notes and Chain-Of-Title

                                Originally posted by kintnerboy View Post
                                You're right of course, and I appreciate your thoughts.

                                This is actually not something that I'm overly concerned about (for myself), and I have done tons of research. I just think it's an interesting topic that I've never seen discussed in 17 years of Done-Dealing, or heard any pro discuss, despite the abundance of blogs and vlogs covering Option Negotiation 101.

                                I guess my major hangup with Zaozirny was that his message was: If you are a writer who has taken notes from a producer, and then enacted those notes, you have a legal responsibility to disclose that interaction in any future option / sale agreements.

                                A statement is either true or it isn't.

                                You can qualify it by saying "I'm not a lawyer", or "This only applies sometimes" or "Only to non-pros", but he didn't. He also didn't retract it or take it down.

                                At a certain point, the answer to every question becomes "Call a lawyer" (which I suspect is just how they want it!).




                                *As a complete side note, one of the notes I got from the producer was STOP USING CONTINUOUS IN SLUGLINES... so apparently this is a big thing with some people.
                                I think, in general, I disagree with John Z, that if you've worked with a producer that it immediately means you need to disclose that relationship to anyone in the future. Or that it implies any "development agreement." And I would also think that the producer doesn't feel the writer is obligated in any way to that producer. It seems a lot of people took what he said as gospel.

                                People offer notes on all the time.

                                I agree, it is a very interesting topic of conversation.
                                "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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