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Until Life (Plus 70) Do Us Part - The Writer's Prenup

By Larry Zerner ESQ

For many writers, working with a collaborator is great. Instead of sitting in a room, alone, staring at the wall, waiting for inspiration to strike, now there are two of you, together, sitting in a room, discussing last night's episode of The Daily Show waiting for inspiration to strike.
However, as any writer who has worked with a partner knows, a collaboration is like a marriage, and like a marriage, issues of money, control, separation and custody should be discussed and agreed to in advance. In essence, the writers needs a prenup (a collaboration agreement) in order to ensure that even if the writing doesn't go smoothly, conflicts with their partner will be minimized and they won't end up losing the script altogether. In order to make sure you're both on the same page (so to speak) before you begin to write, sit down and discuss these issues and write down what you decided. A collaboration agreement doesn't have to be fancy. But an agreement you both signed will certainly make things go smoother down the road. So, here are some questions you need to ask, and know the answer to, before you begin.

If there is no agreement, then who owns the rights to the script?

Under the Copyright Act, the authors of a joint work (such as a script) are co-owners of the copyright in the work. Therefore, you and your partner(s) will own the copyright to the script equally and each be entitled to an equal share of the revenue from the script. This is true even if you write most of the script and your partner merely contributed a few scenes. Therefore, if you think that you should be entitled to more than half of the money, get your partner to agree to that in writing.

Okay, but what if I want to own all the rights to the script, what then?

That's fine. Just as a studio can hire you to write a script, but keep all the rights for itself, you can hire a collaborator to work with you, but you will own all the rights. In order to do this, you need to have your partner sign a "work-for-hire agreement." Under the copyright act, if a writer works under a work-for-hire agreement, then the hiring party is considered the author of the script, no matter how much work the other writer did. This means that you alone control whom you sell the script to and for how much money. In addition, if you have a proper work-for-hire agreement, the person buying your script will not need your partner's signature on the purchase agreement.

A work-for-hire clause should say, at a minimum, something like this:

The parties acknowledge and agree that (a) Patty Partner's work has been specially ordered and commissioned by Wally Writer; (b) Patty Partner's work shall be deemed a "commissioned work" and "work made for hire" to the greatest extent permitted by law; and (C) Wally Writer shall be the sole author of Patty Partner's Work and any work embodying Patty Partner's Work

And one important catch, a work-for-hire agreement is supposed to be signed by both parties before your partner starts working.

What happens if I didn't have my partner sign the work-for-hire agreement before she started writing?

In that situation, some courts have held that it is sufficient if the collaboration agreement states that the partner understood the work was being done under a work-for-hire status before she started writing. However, to be safe, you should include language in the collaboration agreement in which your partner assigns the copyright in the script to you.

The assignment clause should read something like this:

Patty Partner hereby irrevocably grants, transfers and assigns to Wally Writer all right, title and interest in and to Patty Partner's Work, and any and all ideas and information embodied therein, in perpetuity and throughout the world, and Patty Partner waives all moral rights in Patty Partner's Work to the greatest extent permitted by law.

If I do hire another writer, what do I have to pay him?

Anything you want. (I am assuming that you [or your production company] are not a WGA signatory and that the other writer is not a member of the WGA.) You can agree to pay the writer a certain sum of money now (e.g., "$10,000 upon completion of first draft") or a percentage of money you receive in the future (e.g., "Fifty percent of any monies Wally Writer receives from exploitation of the Work"), or some combination of the two.

Do I have to give the other writer credit? What if I already wrote a treatment setting out the whole story and I'm only using the other writer to help with the script?

Again, assuming that the deal is not under WGA jurisdiction, there is no requirement that you give the co-writer credit. Moreover, unless you are producing the script yourself, you can never be sure about receiving any credit. However, even if you are working with someone who is your equal partner, you should discuss and agree to what you want the credit to be. If two of you are writing the script together, you should discuss whose name will go first in the credits. If you came up with the story by yourself then you can agree that the credit should read:

Story by Wally Writer
Screenplay by Wally Writer & Patty Partner

Again, keep in mind that once you sell your script, the producer may bring in additional writers who might drastically change your script (you wouldn't be the first). Therefore, both you and your partner should understand that the credit that the two of you discussed, might not be the credit you receive. Don't promise a writer a credit that you can't deliver!

What happens if someone wants to buy our script, but my partner refuses to sell because he doesn't like the deal?

If you are joint authors of the script, no producer will purchase the script without both writers' consent. In order to avoid this problem, you want to discuss your financial expectations for the script. While everyone hopes for that large six-figure sale, such deals are relatively rare. On the other hand, taking the first low-ball offer that comes to you can result in accepting much less than the script is worth.

Another factor to consider is the quality of the buyer. It's one thing to sell your script; it's a whole 'nother thing for that script to then get made. Is an established producer or "name" actor optioning the script, or is it an unknown with no produced credits? Especially for newcomers, having a produced script under your belt can be much more helpful to your career than merely having a few more dollars in your pocket. Discuss all of these factors with your partner before you go out into the marketplace and have a game plan as to what you want. Are you just trying to make a quick sale or will you hold out for the big studio deal? Think of a way to resolve a dispute before it happens. Maybe you can agree that you will let a mutual friend help you decide, or you can simply flip a coin if you come to loggerheads. But your script (and your relationship) will be much better off if you talk about these issues before there's any money on the table.

What if we get halfway through the script and we get into a huge fight and can't work together anymore?

That's a very difficult situation --The writer's equivalent of who gets custody of the baby after the divorce (and the baby hasn't even been born yet). If your partner was working under a work-for-hire agreement, that is the equivalent of a surrogate mother. Your partner has no claim to the script and you should be free to hire another writer to finish the job or finish it on your own.

If you were equal partners on the script then hopefully the two of you can agree on which one of you will finish the script. Then you can agree to some mechanism to determine how much the non-finishing partner will receive from any future sale. For example, if the script was 50% finished and you finish it by yourself, you would receive 75% of any proceeds and your partner would receive 25% (his half of the 50% he wrote). If you were the one who came up with the original concept, then you might want to agree at the beginning of the venture that if such a situation should arise, you would finish the script.

You could also agree that both of you would finish the script on your own and split any proceeds in the manner described above. However, putting two scripts on the market that are at least 50% identical would probably be counter-productive. Alternatively, if you'll both finish the script, you could agree to let a third party read both and decide which one is better and should be submitted. You're writers, be creative. The important thing is to come to a fair agreement so that none of your hard work goes down the drain.

What about threesomes?

Threesomes can be great, but can also lead to more problems. For example, what happens if two of you are getting along, but you decide that you can't work with the third member anymore? What order will your names appear in the credits? It's even more important when working with two partners to think about and discuss these issues before you begin.

One little-known fact about three-person writing teams is that if you are writing under a WGA contract, or if even one of the three is a WGA member, then for any sale, all minimums are doubled. While this may sound great, what happens if the producer who wants to buy your script for the minimum price doesn't want to pay any more? You run the risk of losing the entire deal (100% of WGA minimum being better than 200% of nothing). The buyer might pressure you to drop one of the members of the team from the deal in order to get the script sold. Again, this is something you just need to keep in mind when working with a 3-person team, so that you can plan accordingly.

Conclusion

There are a myriad of other issues that arise when working with a partner. Will you work in the same room, or alone, communicating via email? How many days a week will you write? During what hours? Do you plan to finish the script within a month or is this a project that will take a year? How will you divide expenses? I'm sure that there are a million other issues that can and will arise. By taking the time to discuss these issues before you begin writing, you increase the chances for a successful collaboration and a better script.

A closing comment by the Writers Store
It is prudent to consult an attorney on all important legal matters.

Meet the Author: Larry Zerner ESQ