Spec Outline

Q. A Canadian producer wants me to write/direct his next feature. He says that in order for us to access development money from Telefilm Canada, I need to provide write a 5 to 20 page outline. But he can't pay me.

Fair? Unfair? Normal? Abnormal?

It's normal. Telefilm wants a longish outline before you can touch the scriptwriting development money, but Telefilm won't pay for the outline. Outlines aren't covered under the WGC IPA, so there's no minimum.

Whether it's fair or not is a subject of discussion between the WGC and Telefilm -- we feel writers should get paid when they write for hire, and if Canadian producers can't or won't pay, then perhaps Telefilm could help them.

The key question is whether you're writing up your own idea for a producer, or writing up the producer's idea. If it's your own idea, then you should probably spec it.

If it's the producer's idea, then you should get paid something for it. I generally don't expect a lot of money for writing up an outline, but I can't do it for free. I usually get paid for my time, as it were, plus I'm attached to write the first draft of the script if it ever gets commissioned.

If the producer literally won't pay any money, and you still want to work with him, then you could propose the following: you write the outline, but you own it. He is attached as producer for X number of years -- say three. If he doesn't hire you to write the script within 3 years, all rights revert to you. You can take it to another producer to get commissioned to write the script, you can write it yourself and sell it, whatever. That's fair, I think.

Note that when a producer says "I want you to write and direct my next feature," it's rhetoric. Any sane producer has a whole slew of projects that could be his next feature, depending on how the financing and creative packages line up. And most of those will be ahead of you in the pipeline, because they already have a script, and maybe some casting, and maybe some financing. Always evaluate producer hype critically.

Getting Ahead of Yourself

Q. I created a series, wrote the template, pilot, and came up with a dozen springboards for episodes. After submitting my show concept to two actors/producers (I checked them out IMDB) they optioned the idea for eight months. If the show gets picked up, how much control will I have ? Would it be rude for me to ask the Network for permission to hire the writers?

No, certainly not rude. It's understood that a newbie creator would like to work with an experienced showrunner who's on the same wavelength, who's going to try to bring the newbie up rather than sidelining her. Whether the network lets you interview potential showrunners depends on how you come across to them. If they think you're a sensible person, and they believe that part of what they're buying is your unique vision -- and not just a concept you happened to trip over -- then they'll want to keep you involved. The showrunner will probably not consult you much on the other writers, but if you're on the same page about what the show is, he'll have your vision in mind.

However, you need to go back and read your option agreement, which I am going to guess you signed without showing it to an agent or entertainment lawyer. Your contract determines what rights you have, including your right to continued involvement on your show. It should say that you'll have meaningful consultation on the showrunner; if you had a great negotiator it might even say you had veto over the showrunner. The contract should also say how many scripts you are guaranteed per season, that you have a guaranteed staff job with a guaranteed credit, that you keep the Created By credit, or a minimum of a shared Created By credit if the showrunner rewrites the pilot. It should contain a per-episode creative royalty, which could be a percentage of budget or a flat fee. It should include travel and living expenses if you're required to work away from home. And so on.

See, the option agreement is supposed to say "we have the right to buy your show, and if we do, here's what you get at that point." That's why option agreements take so ungodly long to negotiate. Long before a show I create is a real thing, before anyone is making money on it, my agent has to negotiate every detail of my package of compensation and credit. Because until I've signed the option, I have total control of my project. If they want it, they have to make me happy. After I've signed it, they may still want to keep me happy, but they don't have to.

All this is why you never, ever, ever negotiate your deal yourself.

Forgot to mention, I'm currently writing episode 5. The guys who optioned really liked my writing and told me to just keep on writing. I figure I'd write 13 and stop. If the show gets picked up, I was thinking, because of the economy, the order would be 6 episodes, 13 if were lucky , and 22 if we're extremely lucky

Stop writing scripts. Please.

Unless, that is, you're getting paid to write them. And I doubt you are, since they told you to " just keep on writing."

Getting a show made is striking the jackpot. It doesn't happen that often. Professional writers wax fat on staff jobs, but we survive on development deals. I spent all last year developing my pay cable show, writing draft after draft, running a story room, revising the season arcs, etc. If it doesn't go, I'll mourn, but my agent will still be very, very pleased with me.

You should not do any more new scripts until you are getting paid to write scripts.

Writing additional scripts also doesn't make sense creatively. No one at the network is going to read past episode 3 when they're deciding to pick up the show or not. In fact, most of them won't read past the pilot.

Moreover, the network may have different ideas about your show. TV development is collaborative. On NAKED JOSH, we started with a show about a freshman in college. The network asked us to age it up. We wound up with a show about a young professor. Imagine if we'd written five scripts about a freshman in college! Writing TV is a process of sending something to the network, getting feedback, and rewriting. For my pay cable series, I've written dozens of drafts of the first three scripts trying to nail "what the show is." The network hated one script (my bad) and I had to throw the entire thing out.

Don't get ahead of where your project is.

I would put all your energies into writing and rewriting the pilot. Make sure it is brilliant. Examine each line in it. Can you make that line smarter, more distinctive? Can you make the action sing? Writing is rewriting. Get real actors to read the script out loud at a table reading. (Maybe your actor producers can help there.)

Also, keep trying to improve the springboards, without actually writing the scripts. A great pilot with a great season arc document is all you need to sell a show to a network.

Deal Terms for Newbies part 2

OutofContext comments:

So, if I understand correctly, a studio deal essentially mirrors an option from a producer. An independent producer will take out an option which spells out the terms (payments and guarantees) that a studio (or producer with actual money) will want to secure and attempt to sell those rights for a profit and maybe attach themselves to the project. The difference with dealing directly with a network then is cutting out the middle man.

Right. Generally even if it's a network deal it's done through the producer, at least all of my deals have been with producers. The difference is if a network is involved before I do the deal with the producer, then (a) the network will have to approve the deal and (b) I will get to ask for a much nicer deal, since it's already a project a network wants. I think the exception would be where the showrunner has his own production company; Joss Whedon's deals are between his company, Mutant Enemy, and the network.

You mention developmental scripts as opposed to production scripts. Is that essentially what development is; the generation of enough good scripts to convince the studio that the project is viable?

That's it precisely.

Also, at what threshold does a writer who is brought in to an existing project get a 'developed by' or an actual 'created by'? Is it guild determined or a negotiated credit?

The "Created by" credit usually belongs to whoever writes the pilot script. If a heavy hitter showrunner rewrites someone else's spec script, then he might share Created By credit, or get a Developed By credit. Who gets the Created By credit is something you'd definitely want specified in your deal memo when you option your spec pilot. My deals say I get the Created By credit. A less established writer's deal might guarantee "no less than shared Created by credit."

Deal Terms

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.