Negotiating Skillz

Slate is running a series of podcasts on negotiation. Negotiation is a big part of any showbiz career, even if your agent is doing it for you. Playing poker is a useful way to learn some negotiation skills, but this podcast series is excellent too. They're talking about how to figure out your walkaway threshold, how to start by schmoozing, whether to propose a number first or wait for a proposal...

Talk Amongst Yourselves

A pro writer friend of mine is trying to resolve an issue with a producer, and writes

Ugh. Maybe I'll try another nice email ...

Y'all love email, don't you? You can gather your thoughts. You send it off into the blue. No real face to face confrontation.

Email is great when two people are more or less on the same page. Where email sucks is resolving confrontation. Email just generally exacerbates problems. Someone who is mad at you will take an email the wrong way no matter how you write it. If it's nice it'll come off smarmy. If it's not nice it'll come off pissy.

More importantly, it is extremely easy to say "no" by email. In fact, you just don't respond.

People, if you want a "yes" from someone, or even part of a yes, then you can't do it in prose. You have to call. On the phone. Even better, get a face to face meeting. People are much, much nicer in person than they are on the Internet. They tend to see your point of view. It's hardwired in us as human beings to cut the other person some slack when she's right there and we can see she's upset.

When you meet people in person, they become your friends.

People write email because they don't want to expose themselves. They don't want to be vulnerable. Yet being vulnerable is what gets the other person to be nice to you. If you are, for example, trying to get a producer to give you a project back, what are they odds they're going to do it because you sent an email? Not very good. But if you take your producer out for a nice cocktail and, after a few drinks, say, "Hey, are you gonna do anything with that project? Because I put a lot of love into that, and I would really love to do something with it" Then they might say, "Sure, go for it."

Of course, meeting with people means that you will have to see their point of view, and you'll have to swallow your anger yourself. That's another reason people like to use email -- they get to stay angry. It is also another reason why you need a meeting. Don't you want to see the other person's point of view?

Negotiating without seeing the other person's point of view is like playing stud poker without being able to see the other guy's "up" cards. It's bad enough you can't see their hole cards. It's impossible without seeing their up cards.

Seriously. Texting and emailing is great to arrange a hookup. To negotiate anything substantive, get as much contact as you possibly can. Phone good, meeting better. Email won't get you what you want.

The exception to the rule is if you email someone and then immediately call them. I like to lay out my concerns clearly. But leave the email open ended. Just lay out your concerns. Your point of view. Don't take the other side to task. Don't ask questions you can ask on the phone. You only want the email to frame the phone call. Not to substitute it.

Human contact, people! There's no substitute for it.

What Spec Means

Q. HI there, I was asked to write a spec pilot for a TV series. How much of a percentage should I ask if the pilot gets bought? should i ask for an upfront pay? how much would that be?

This is not a "spec pilot" situation. A "spec pilot" is a pilot for your own series that you write on your own, hoping to sell it. You own it 100%. Once someone wants to buy it, any agent in the world will be happy to negotiate your deal.

What you are being asked to do is write a pilot on spec, which is an entirely different thing, and it is forbidden under the WGA and WGC rules. There will be no upfront payment; that's what "on spec" means. A WGA or WGC signatory producer is not allowed to ask for you to do any writing on spec, so I assume you are not dealing with a signatory producer.

Let's suppose you're a newbie writer and this is a big break for you; otherwise, don't do it.

The odds are the pilot will not get bought. But if it does, then you would normally be entitled to a great deal: "Created By" credit and a per-episode royalty; a guaranteed staff position with a guaranteed number of scripts per season; a big hunk of cash for purchase of rights; and, of course, the Guild minimum for a pilot (150% of payment for a regularly episode). Also, the right to write any MOW or feature based on the series, and passive payments if you don't write same. (Agents know all this stuff.)

What the producer will try to do is get you to do the heavy lifting, in exchange for a small payoff if he sells the series. Don't do it. The odds are terrible of anything happening, especially on a project that a producer is unwilling to pay money for. If something does happen, you need to make out like a bandit in order to make up for the long odds. That's why you don't want to negotiate your terms now. You're not getting paid anything, so there's no reason for you to negotiate your back end now. Negotiate your back end when you're in a strong negotiating position, when there's a network that wants to buy and you're the only one they can buy it from.

Mmy point of view is that you are contributing a few months of your time and the producer is contributing a "napkin idea" and some notes. So you should own the results, not him. The producer must assign his idea to you, in return for a limited-period option during which only he can set up your project. Should the producer set up the project, your agent will negotiate your compensation then, when it's actually worth something; not now. If the producer hasn't come to you with a bona fide offer within 18 months, say, then the project reverts entirely to you and you own it outright. Only fair.

I don't think you should negotiate terms up front. But if your producer insists and you still want to work with him, then I would insist on the following:

a. Upon producer assigning his rights to the project to any third party, your pilot script has to be bought under a WGA deal. I.e. your deal becomes WGA upon the producer setting up the project with a studio or network.
b. You have the right of first refusal to write at least the first two scripts ordered after the pilot, up to first draft.
c. Should the series be produced, you get a CREATED BY credit, which can be shared with any other writers getting credit on the pilot according to WGA arbitration.
d. Should the series be produced, you get a per episode royalty of, let's say, $5,000 per episode, for the life of the series.
e. Should the series be produced, you must be hired as a story editor for at least the duration of the first season, at WGA scale for a story editor. (I think it's about $6,000 per week.) You are guaranteed at least 2 scripts per season, above and beyond any scripts written during the development period.
f. Should the series be produced, you receive $25,000 in cash on the first day of principal photography, in exchange for the series rights.
g. Whether the series is produced or not, you have the right of first refusal to write the first feature or MOW based substantially on the pilot, at WGA scale.

Note that these terms are (a) unrealistically low for a professional writer writing a pilot for money, and (b) much more than your producer probably dreams of paying. But screw him. He's not paying you anything to write it, so he shouldn't complain that you'll get paid fairly -- by the studio, not even by him -- if by some miracle the pilot gets picked up.