An NDA? Really? - Complications Ensue
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Saturday, April 17, 2010

Q. I was fortunate enough to find a independent producer who wants to buy my script. So far, they sent me the NDA [non-disclosure agreement] which I signed and a 1st draft of the option agreement, which wasn't signed. They say they are working on the final draft of the option and they're working on funding the company so that I can get paid. They also have about 3 or 4 other projects they're developing. You mentioned you can never trust a producer who says he knows where he might be able to get the money to make a movie(s).

I was just wondering, is the signed NDA enough of a legal document to prove they're serious about making the movie and that my script has merit?
Certainly not. Asking you to sign a non-disclosure agreement doesn't mean anything. In fact it's very odd to ask a screenwriter to sign an NDA. What do they not want you disclosing? It's your idea!
They keep promising me it'll get done and that things are looking "great", but I don't know. I'm wondering if they overestimated how quickly they can get their company funded. The 1st draft of the option said they'd pay me quite well, but nothing was signed yet. Now I'm sitting and waiting for the final option.
It's amateurish of them to send you a draft option and then promise you a real option later. The draft option should represent their offer to you. Your representative then uses it as a baseline to ask for more stuff, to close loopholes, to clarify ambiguities, generally to make it a better deal for you. Then it goes back and forth between your rep and them until you both have something you can agree with.

Their saying things are going great may mean absolutely nothing whatsoever. Producers almost always say things are going great. Until it comes time to pay. Then they say things aren't going as well as they'd hoped and could they have more time, please.

As a practical note, agreements are almost never signed by the producer until the writer signs. I don't know why, that's just the way it's done. I don't really know what would happen, legally, if the producer took your signed deal and then failed to sign it. I assume that your representative could insist that he sign it or the deal would be considered void. Make sure your rep follows up to make sure the deal is actually signed by the producer. It makes it harder to hold him to terms he hasn't signed.

(It is not impossible however. Under contract law, your working under a negotiated but unsigned agreement may create a contract, and their paying you almost certainly does. But IANAL, this is not legal advice, and YMMV.)

My suggestion would be that you have a rep (lawyer or agent) send them your notes on their contract. Their draft option almost certainly contains loopholes favoring them. I would consider the project "available" to other people until you get a signed deal. Until then, I would quietly continue to shop it around. If you get a better offer, you can pit producer against the other, and that's always fun.

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2 Comments:

Sort of similarly, I had an independent but (from what I've heard) reputable producer say she wanted to option my script for a Web miniseries, and they've been taking forever sending me one. It's been over a month and a half of "in about a week." Should I be concerned?

By Blogger Little Miss Nomad, at 8:38 PM  

This is really troubling. A non-disclosure agreement means you're not free to take the idea to anyone else, right? So no wonder they're taking their time getting you a contract.

It might be a good idea to set a formal deadline for them, after which the deal -- and the non-disclosure -- are void. Hopefully the non-disclosure didn't obligate you to keep mum "until producer secures funding" or something open-ended like that. Do you have a lawyer or agent?

By Blogger Lisa Hunter, at 6:48 AM  

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