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Complications Ensue:
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Tuesday, August 05, 2008

Q. I have just received a contract offering to option a pilot and bible I've been working on. [Long list of deal terms follows.] Is that a fair deal?
Probably not. Producers write contracts to give themselves loopholes and outs. They lowball their offer a bit. Even if they're honest, they figure you'll want to negotiate, and so they give themselves a little room to negotiate.

If someone is offering you an option deal, it should not be hard to find an agent to negotiate it for you. They'll take 10% of what is likely a small upfront fee with a bigger back end. They will almost certainly boost your deal by at least 10%, so they cost you nothing. In return you get their knowledge of what a fair deal is, and you won't piss off the producer by asking for more than they offered.
Q. I am a 45 year old first-time writer (ridiculous, I know), so I'm willing to take a less than industry standard offer.
Nothing ridiculous about you if you have a property someone wants to option!

But more importantly: don't negotiate against yourself. You want your agent to get you as much money as you can without pissing the producer off. The more he pays, the more he'll value the property and you.

You don't get what you deserve. You get what you negotiate.

Where your being a newbie comes in is what you want to struggle for and what you'll give up. Obviously you're not going to be the showrunner. On the other hand you should insist on being on staff and writing as many scripts as they'll let you have. Ask for 25% and settle for 20%. You won't get control but you can insist on involvement. In a TV deal, it costs the producer very little to guarantee you scripts. Someone will have to be paid Guild scale for them; and the writing staff can always rewrite you if you suck.

Producer will use Producer’s reasonable best efforts to have Owner engaged as a writer on the Series on terms and conditions as generally prevail in the television industry comparable to those of Owner’s experience as a writer.
This is why you need an agent who knows how to read a contract, or failing that, a lawyer. You want "best efforts," which is a term of art, not "reasonable best efforts" which doesn't mean anything. "Terms and conditions ... comparable to Owner's experience" is useless if you have no experience. You want "Owner shall have the right of first refusal to write the first draft of the series pilot. Owner shall right of first refusal to be hired to write no fewer than 20% of all scripts commissioned during the first season of the Series." That is an enforceable right. The language you've got can easily circumvented. ("We asked the network, and they said no.")

Remember the legal axiom: "a man who is his own lawyer has a fool for a client." Never negotiate on your own behalf if you can avoid it.

This rule is even more important where the people with whom you're negotiating are friends or family. You will either piss them off (don't you understand what a big favor they're doing you???) or seriously undervalue yourself. Or both.

The correlary to this is: don't abandon the negotiations to your agent. Discuss the terms and the language in depth. Ask questions. Insist on what you need to get. Explain what you're willing to give up. Go over the contract yourself. Your agent fronts you, but the decision is yours.

And always be willing to walk away from a deal that doesn't feel right. It's almost impossible to get a fair deal unless you're willing to walk away.

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