Similar Project

Q. A producer wants to read my script. But he says he's got a similar project, and he wants me to sign a release form.

Normally I wouldn't worry about signing a release form. It's just something you have to do.

And normally I wouldn't stress if a producer said they had a similar project. Lots of people have similar projects. Most don't get made.

But I would not be particularly anxious to send my script to a producer who said he had a similar project, and wanted me to sign a release form. There's just too much temptation for him to steal whatever he likes from my script and apply it to his project. Indeed it would be hard not to. And the release form would in that case protect him against any claim you might have.

And if he's already got one project, he probably is not going to toss out the one he's worked on, and buy yours. So there isn't a lot of upside.

So I would "count to ten on that."

What Do I Want In My Contract? The Streaming Audio

In February I moderated a WGC panel discussion on What Do I Want In My Contract? at McGill. It covered contract terms that aren't in the WGC Independent Production Agreement (the equivalent of the WGA's Minimum Basic Agreement).

The streaming audio is now available. We should be posting a downloadable MP3 pretty soon.

Releases and Rights

Q. I just wrote a spec coming-of-age film script based on an experience from my youth. As this is based on a true story, do I need to get releases signed by individuals portrayed in the script? How is this usually handled in scripts like 'Erin Brockovich,' etc.? Thanks for your thoughts!!

Depends on how faithful you are to what happened. If people and events are recognizable, and especially if you use real names, then you'll need releases. ERIN BROCKOVICH would have needed the rights from Erin Brockovich, and releases from the main characters in the film (the lawyer she worked for, etc.). They could also use anything that was in the trial record, as court documents are automatically public domain. (I think. I'm not a lawyer.)

If you are writing a story inspired by true events, you should be okay. I doubt Richard Linklater bought the rights from his high school stoner friends to put characters loosely based on them in SLACKERS.

Also, realistically, it depends on how pissed off people are going to be. If you're really ripping someone a new one, you might want to lawyer up. THE INSIDER probably had a lawyer or two closely vetting the script.

All Publicity is Good Publicity

Q. Do you think a producer can damage you and your spec script talking about it to people (e.g. other producers, tv and funding ceo and so on) before having actually bought it himself?

I don't know why a producer would tell other producers about your script unless it wasn't for him. Why would he? He doesn't control it. If I were a producer, and I was interested in a script, I wouldn't do anything about it until I'd optioned it.

The exception would be producers who have a relationship with a studio, who would take a script to their studio to get money to buy it. I suppose if they have a financier, same goes.

You could be dealing with an "emerging" producer or someone who doesn't have the resources to option your script. They might take your script to bigger producers they know to get money to option it. But they would probably not do that without at least a shopping agreement that attaches them to the project in the event they get it set up somewhere.

Alleged Breach

When you sign a writing or option contract, you're asked to warrant (guarantee) that all your work is original. There is often a clause that says you are responsible for any "breach or alleged breach" of your warranty.

You need to get that "alleged breach" struck from the contract. You can't be responsible every time some idiot thinks you stole his idea. For example, some idiot is suing James Cameron because he thinks Cameron stole his story and made AVATAR:

Moore contends that he first came up with ideas that surfaced in “Avatar” in a pair of his own screenplays, “Aquatica” and “Descendants: The Pollination,” including “bioluminescent flora/plant life, unbreathable atmospheres, matriarch support of hero vs. heroine, spiritual connections to environment and reincarnation, appearance of mist in scene, sunlight to moonlight, crackling from gargantuan foliage, blue skin/green skin and battle scene on limbs/branches,” according to the gossip web site.

This is particularly stupid, as everybody knows that Avatar is heavily inspired by FERN GULLY.

You should be responsible if you actually breach the contract. But you can't be on the hook if somebody takes it into their head that your movie is based on their life, or that they invented Ewoks, or whatever. Even nuisance suits are expensive to get dismissed. Movies have that kind of money. You don't.

What Do I Want in My Contract? A WGC Panel Discussion

I'm moderating a panel for the WGC in February at McGill on "What Do I Want In My Contract?"

What should you ask for when you option a feature film or a TV series? The Writers Guild’s basic contract (the Independent Producer Agreement) covers many basic terms, but others aren’t codified, including lots of ways veteran writers get paid on the back end, your right to write new material, and the crucial “Created by” credit in TV. Plus, what’s all this fine print?

We’ve invited an agent who reps writers to talk about what writers can and should ask for; a producer’s lawyer to talk about what’s easy for producers to give and what’s hard; and a representative of the Writers Guild of Canada to talk about what contract terms end up in disputes. The panel will be moderated by Alex Epstein, who’s worked both sides of the table. Audience members will be able to ask questions.

This event is aimed at professional, emerging and aspiring screenwriters, but filmmakers of all kinds may find it illuminating.

Check out the Facebook Event page.

Also, if you have questions you want me to bring up at the panel, please email me.

Protection

Q. I just talked with a fellow writer at length about my series idea. She asked a whole bunch of highly pertinent questions about it, and I was eager to test out the work I've been doing over the last few months by giving her strong, crisp answers, and seeing her response. But as I hung up the phone, I grew nervous that I'd basically just handed over my bible to her. She seems like an ethical person, and I don't think the friend who put us in touch would have connected me to someone sleazy, but nevertheless, it would be devastating if my ideas were stolen. Is there anything I can do? Perhaps I can send an email thanking her for the call, and reiterating some of the details of what I've mentioned, so that there is a written record of my having been the originator of the ideas?

Sure.

I generally don't worry too much about people stealing my ideas. Usually I worry about how I can possibly get people interested in them. When writers gather, they generally don't complain about idea-stealing, but inane-note-giving.

But it's not a bad idea to protect yourself.

You could protect yourself by copyrighting your material at the Library of Congress, but that would get expensive if you did it every time you wrote a pitch. Generally what I do is send my material to a few people. My agents, obviously, and a few people I trust to read my stuff. If you just get your pitch out there to a handful of people, it is going to be easy to prove that you wrote it first. And that's all I think you really need.

Free Option?

Q. A producer wants to option my script and send it to Téléfilm next week for script development financing. He’s offering a symbolic $1 fee for the option, and says that it is common for our industry (Québec and non WGC member). The production company is well known and has a good reputation, I’m not concerned with ill intent, I’d just like a confirmation that indeed it is common, especially for an up and comer without screen credits and not a member of any writing guild. I understand that as a member of a guild, it’s a hard thing to accept, but from my perspective, is it something I should expect?

Normally I'm against free options. An option fee is not only money in your pocket. It is also an indicator of how solid the producer is, and how serious he is about your project. A producer who can't scare up even a thousand bucks to option your script is either not very serious or not very solid.

Normally I would say that if a producer is balking at paying money, you can offer him a shopping agreement: he can take it around, and he's attached, but you won't actually negotiate your deal until it's set up somewhere. This naturally puts you in a much better negotiating position; but hey, if he wants to lock down your material, he's got to put out.

However, here in Canada, and especially in Québecistan, producers rarely have any cash lying around. All but the strongest have to take projects to funding agencies even to get you an option fee. So it's not unreasonable for a producer to ask for an essentially free option. The shopping agreement doesn't work in features, because the funding agencies require that the producer have an option.

So while an experienced writer might expect to get paid something for an option, a writer with few or not credits might have to sign a free option.

However, since it's free, you should expect a very, very good agreement. I would ask for the following, whether you're in the States or Canada:

• Once there's funding, you get an option fee equivalent to the WGC minimum (which is 10% of the script fee).
  
• All minimums should be equivalent to WGC minimums: script fee, production fee, royalties, etc. .
  
• Credit to be determined, in the event of dispute, by a mutually approved arbitrator, using the criteria of the WGA MBA or WGC IPA.

(Actually, if all possible, get a deal that says that once there's funding, the option deal becomes an actual WGC deal. (Technically you sign a short-term non-Guild "option to option" deal that grants the producer the right to execute a long-term, as-yet-unsigned WGA or WGC agreeement.) You really, really want to have the Guild behind you.)

• Right of first refusal to write the first rewrite at no less than WGA or WGC scale. If you don't have this, they can pay you the option payment, and then give the rewrites to a slew of fancy writers. Otherwise, the producer could spend $80,000 on rewrites, fail to make the movie, and you wind up with a couple of thousand bucks because he chose a fancier writer than you.
  
• It's a good idea to ask for a clause that says if the option expires, you get the rights to all your rewrites back, subject to a payment on the first day of principal photography of any amounts you were paid to write them. Otherwise after the option expires, the producer still owns your rewrites, and that amounts to having veto power of any future deal you might do with a third party. There's no good reason for a producer to refuse this, since if he doesn't have the option anymore, the rewrites are useless to him.

Once you have signed an option agreement, you lose all your leverage. So make sure it's a really robust agreement. If they're not paying you, they really have no right to nickel-and-dime you on on the option agreement. And if they're being sticky about the terms of the free option, then you really shouldn't feel bad about walking away.

Go Guild or not Go Guild?

Q. Does the Canadian writers guild require a writer to get something more than the purchase of rights to a screenplay? It looks like I'm on the verge of selling a script to a Canadian studio, and I'd like to know if I'll be getting a percentage of the budget, a percentage of box office receipts, etc... something more than just the purchase price of the script.

Yes. The WGC Independent Producer Agreement (IPA) requires that writers be paid a Production Fee, payable on production of the movie, of about 2.5% or so of the movie's budget. On a $10,000,000, it's $230,000, minus whatever else you've been paid so far. Also, you get a distribution royalty.

Are you a member of the WGC?

Q. I'm actually not a member of the Guild, although my script is registered there. Do I need to be an actual member of the guild in order to get the production fee?

Er, yes. Registering a script can be used as evidence that you wrote a script, but it doesn't entitle you to WGC minimums. (Copyrighting a script is much better than registering one, but that's another post.)

If a producer is signatory to the IPA, then you must get a WGC contract, and you are entitled to join the WGC. You can choose not to join the WGC on your first contract, but c'mon, don't be a putz. The WGC also protects writers' credits, and will talk to producers for you if the producer is not abiding by their agreement. That's handy since you don't want to sue producers if you can avoid it.

You can always try to negotiate WGC minimums whether or not you are a member of the Guild; just put the same payments in your contract. But producers will rarely give them to you when they don't have to.

The executive producer (who is also my agent) is in the States, but the studio who's financing the movie is in Canada.

Uh oh. Your producer is your agent? That's not good. That's a clear conflict of interest. Who's negotiating your deal with your producer? Your producer?

Under California law, an agent can't be a producer, for just this reason. (A manager can be a producer, but the law requires that your deal be negotiated by an agent or lawyer.)

Would you recommend I become a member of the Writers Guild of Canada in order to get the most money I can out of this deal? Or would that matter a whole lot?

I can tell you of at least one screenplay deal I signed, long ago before I joined the Guild, where I wound up having to accept $15,000 instead of $50,000 because I wasn't Guild yet.

I only know one busy writer who's not Guild. He's always doing low-pay gigs for overseas producers. I can see that he's concerned that he'll lose out on some gigs if he went Guild. And maybe he would. But I think he'd get at least as much money overall, and that would mean he could spend more time on fewer gigs and take more time with each screenplay. I think he'd be a better writer, and possibly a richer writer, if he went Guild.

So yeah, I recommend going Guild if you can. Also, get a real agent.

(Full disclosure: I'm the Quebec Delegate to the WGC National Forum, so I won't pretend to be neutral. But if I didn't fervently believe in the WGC, I wouldn't have run for the job.)

Chilling Effects

I may be possibly the only blog not to have received a cease-and-desist letter from somebody. Chilling Effects explains First Amendment law and why you can probably ignore most cease-and-desist laws.

The Electronic Frontier Foundation also has a page on blogger's rights.

ND

Can a writer get sued for signing an NCND (non-circumention, non-disclosure agreement) by the funder of the movie? I am 'talent', should the writer be that involved in the business of making the movie? I mean, what if the executive producer violates the NCND and gets sued, would I get sued too just because my name is on it even though it wasn't actually me who violated it?

It is not normal for writers to be asked to sign ND agreements in show business. It is normal in the game business. The unconscionable standard agreement that showbiz writers are asked to sign is called a "release form," and often they say things like "If we independently make a movie similar or identical to yours, tough luck.

If you sign a reasonable ND agreement, you can be sued if you reveal confidential information about the project to the public. Since you're the writer, the only confidential information you normally would know is how the movie turns out. If you were the writer of BASIC INSTINCT, and you got mad at the producers and started telling everyone who done it (it's not who most people think, incidentally), you could be sued. If you were a "preditor" on SURVIVOR and revealed who won, you would definitely be sued. However, if you don't know confidential information, you can't be sued because you can't reveal it. And unless the ND agreement really is unconscionable, you can't be sued for the actions of someone who is not in your control.

Even if the producer violates it, I can't be sued? The writer is 'talent' and is apart from the business side of it all, so if the funder decides to sue production company, I can't be included in the lawsuit? Am I right about that?

You CAN be sued for almost anything. Whether you WILL be sued, or whether you can get the suit thrown out as frivolous, is a more important question. But generally, you should not be sued for things you did not do. You would presumably have a separate ND agreement from the one your producer is signatory to.

Caveat: it all depends on the actual wording of the contract you signed; and I am not a lawyer and this does not constitute legal advice. Don't sign anything unless you've had a legal expert look at it.

He's My Agent (slap!) He's My Producer! (slap!) He's My Agent!

Q. I've been contacted by an agent in Agoura Hills in response to a script query letter that I sent and I'm pleased as usual, but this is the first time an agent has responded with a 2-year exclusive producer agreement instead of the standard submission release form. This agent operates as a producer and lit manager, but I don't know if contracts like this are industry standard. Do you have any experience with a situation like this? I'm still trying to break through, so I'm open to trying different avenues as long as I'm nit abused or cheated in the process.

First of all, Agoura Hills? Bzzzt. No.

There's some confusion of terms here. "Agent" is a job that is highly regulated by California law. Agents cannot produce. There would be too much conflict of interest. The producer's goal is to pay you as little as possible. The agent's goal is to get you paid as much as possible.

Moreover, a typical deal with a producer covers only one script. An agent is supposed to represent all your material, and also find you jobs.

Managers are unregulated, and can produce. There are major players who are manager/producers. However, if you are managed by, say, Echo Lake, you also have an agent, not at Echo Lake, who will be the person negotiating on your behalf. In fact, by law, technically, managers can't negotiate your deal, although practically, they discuss it a lot. You must be represented by an agent or a lawyer; your manager is only supposed to set up the deal.

Incidentally, if someone comes along claiming to be a producer, check out their credits on the IMDb. If they haven't produced a movie -- not Associate Produced, not Co-Produced -- then they're an aspiring producer. I tend to think there should only be one aspiring person in any one deal, if you want your picture to actually get made.

I don't think your first representative should be a producer. I would try to find a real agent first.

Fair Option Price

Q. In today's feature film market, what is considered a "fair" amount for a one year option on a script? Is it based on the projected budget of the production? I've asked around, and even people I know in the business don't seem to know.

There's no such thing as fair. There's only what you negotiate, and what the "standard of the industry" is.

Under the Writer's Guild of American Minimum Basic Agreement, an option can be no less than 10% of the purchase price of the screenplay. If I understand the Schedule of Minimums correctly, the minimum for sale/purchase of an original screenplay is about $35,000 if it's a low budget screenplay, and $75,000 if it's high budget.

If you're dealing with studios or US production companies with studio or network deals, these numbers ought to hold.

Under the Writer's Guild of Canada IPA, an option must also be 10% of the purchase price, which is a minimum of just over $50,000.

In practice, Canadian producers and non-affiliated US producers rarely have any money lying around to option scripts. So people compromise.

In the US, producers often seek to option material for free, if they can get it, or for five hundred or a thousand buck, depending on how badly they want the script, how solvent they are, and how willing the writer is to walk away from the deal.

In Canada, there may be an "option to option." A WGC deal is struck, but not executed. The producer gets a cheap (free-$1500) option to take the script to funding agencies (Telefilm, provincial agencies like SODEC and OMDC), Greenberg and Corus Made With Pay. If the funding agencies cough up money for development, the WGC deal goes into effect and the producer pays the full option price.

This is not kosher by the Guild, of course, but good luck getting a producer to pay you $5,000 to option your script prior to Telefilm giving him the cash.

Likewise, in TV, it's not that common to get the full option payment before a network signs on. Then the network pays for the option.

In related news, Telefilm has taken to asking for an extremely detailed and long pitch before it funds the writing of a script. If a writer is called on to write up such a pitch based on a producer's idea, then he's probably not going to get more than a couple thousand bucks to write it, and the producer will try to get it for free. If Telefilm is willing to provide the dowry, then the producer makes an honest woman of the writer. This is really not kosher, because the writer's essentially writing a treatment at far below scale. This is something that the WGC is discussing with Telefilm.

UPDATE: BeingBrad asks:

Q. Holy crap. So do writers for the Canadian market actually make enough money to live?

Yep. However, nobody lives on option payments. The payday on features is when you get paid to rewrite your optioned script (about $20,000-$30,000). Telefilm puts a fair amount of money into developing scripts, so if you have a few good projects that the funding agencies spark to, you can put together a good year. You just won't get rich. The jackpot is if your feature actually gets made, and you get a production fee that can run into the low six figures on a decently budgeted film.

In practice, though, most pro feature writers also write TV, or they also direct.

Likewise in TV the options are small, but if the network picks up your show for development, they'll commission a pilot and perhaps a bible. Then you ought to be getting a few tens of thousands of bucks. And if your show goes into production, you ought to make a couple hundred thousand in the first year.

Comparable numbers in the US are, of course, much higher, and in revenge, everyone in LA considers themselves humiliatingly underpaid.

How to Protect Your Blog Content

This site has a terrific rundown on how to protect your blog from copyright infringers.

An NDA? Really?

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.

Real People

Q. I have an idea for a scripted TV show based on real life experiences I had. My characters are based on real people with some added characteristics, but I'm not using their real names. If the script made it to an actual tv show, would the 'real' people be able to sue me?

1. I am not a lawyer. I am especially not your lawyer. This is not legal advice.

2. As I understand it, it depends on how similar the characters are to the real people. If the characters are recognizably those people, then you could have a problem.

On the other hand, writers base characters on real people all the time. For example, Dr. Evil is based on SNL producer Lorne Michaels, complete with mannerisms and catchphrases. ("Throw me a bone, people.") Lots of people write thinly disguised autobiographies with negative portraits of the people they don't like. On the other hand, there have been lawsuits about just that, and even if you win a lawsuit, it can take a chunk of your life.

I think you can steal the essence of someone you know, so long as you don't steal the details of their lives. They probably don't see themselves the same way you do, so they may not recognize themselves, unless your character also went to Pomona College and majored in Archeology and had an unfortunate affair with the hot dog stand lady.

Why Won't They Read My Unsolicited Spec?

Q. Do TV shows toss unsolicited scripts because of company policies? Or just because showrunners strongly prefer to read work that has been referred by someone else?

In other words, is it a strict rule or a guideline they abide by?

Companies toss unsolicited scripts for legal reasons. They may be developing a script with a similar concept. They don't want to take a chance that you will sue them for "stealing your idea." Pro writers know how common it is for writers to think of the same ideas, entirely honestly, but aspiring writers don't.

For example, Lisa and I were partly put out, and partly pleased, to see that HBO is coming out with a show about groupies called I'M WITH THE BAND. Put out, because we had a pitch for a show about groupies called I'M WITH THE BAND, and now it's dead. Partly pleased, because it means we were on the right track. I've had that happen to a script about Pretty Boy Floyd and a show about teenage models. I have a script that's "Moby Dick in Space." I was in the library yesterday and happened to notice a graphic novel which is Moby Dick in Space. We were working on a show about peacekeepers till we heard about ZOS. And so forth.

When it comes to spec scripts of the show they're producing, it is practically guaranteed that whatever you are sending in, if it is at all in the ballpark for the show, it's an idea that the staff has kicked around.

Aspiring writers may not understand that. There's a guy who sued George Lucas because the guy was convinced that he had invented Ewoks. Yah. Teddy bears with spears. There's an idea that only comes once a millennium.

If you're going in to pitch a show, on a meeting set up by your agent, then you probably understand that your ideas may not be original. You hope they'll give you a script to write anyway if your take on the story is more interesting. But that's a different process. You go in with a pitch idea, and the showrunner has a chance to say, "We didn't want to go in this direction, but I'm interested in this aspect of your pitch," and develop it from there.

STAR TREK: TNG was famous for being a show that actually did read specs, and buying a few of them. But I've never heard of another franchise doing it.

It is also very hard for a showrunner to read a spec script of his show. It is going to read slightly off. Or very off. It just is. I can't read a NAKED JOSH spec; they just irritate me. I can read a spec MODERN FAMILY and not get bent out of shape; I have no stake in the show. But if it's a show I was in the room for, then it's going to feel very out of the room.

Generally no TV show is going to read unsolicited scripts in the first place. But at least, if your agent is submitting your LIE TO ME spec to Hart Hanson, he doesn't have to worry that you'll think you invented the BONES episode they've been talking about for years.

Adapting from Research

I'm hashing out a new story idea for a rom com that is going to require some research into dysfunctional relationships. If I research primarily from one or two books, is that considered an adaptation? Normally I would laugh at this sort of question, but a recent trend has me wondering. "He's Just Not That Into You" was "adapted" from a self help book. I've never read the book, so I'm not entirely sure how they compare. Were they just paying for title recognition? Even more recently, I read that "What to Expect when You're Expecting" will be adapted. How do seven plotlines centered around pregnancy and parenthood become an adaptation? If that doesn't just count as simply research anymore, is everyone going to be expected to have options on their primary sources?

No. In both these cases, producers are buying the property in order to be able to sell the property, and the title, to a studio. "I've got the rights to the most famous book on childbirth" gets you a meeting or two.

But as a writer you can certainly write stories based on nonfiction all day long. By the time you're done making up stories, it is unlikely anything will remain of the original copyrighted material. (Make sure it doesn't.) So you're free and clear. You can even tell people it's "inspired by books like WHAT TO EXPECT..."

You can't copyright an idea. You can't copyright biology or culture or sociology. You can only copyright the specific representation of an idea. Which means I can do an awful lot with your idea before I have to option the rights from you.

Play Ball

Q. To create a fictional series or movie loosely based on events surrounding real people and sports teams eg, if the lead characters are fictional characters who work as groundskeepers at Fenway in the 80's, would I need to get permission of MLB to use the logo or interact with actual people that are still alive? I understand most sports teams won't permit use of their logos that might portray them negatively, so in cases like the Ted Lindsay movie about the creation of the NHLPA, or baseball movies like Babe Ruth, how are these made?

As we used to say in computer science, this problem is non-trivial. Copyright is fairly straightforward (though "fair use" is not entirely well defined). But here you're looking at trademark right and privacy rights.

You can't use the MLB logo in a movie, whether positively or negatively, without permission. Nor can you use the Red Sox uniforms. They're trademarked. Your producer is going to have to get permission from MLB and the Sox to use those trademarked logos and clothes and such. Fenway may or may not be trademarked; sometimes stadiums and other icons are trademarked.

You can fake it to some extend. On BON COP BAD COP, we had a team that wears blue and white uniforms, and a team that wears red and white uniforms, and you were free to assume they had something to do with the Toronto Maple Leafs and the Montreal Canadiens, but we never actually used Leafs or Habs uniforms. The team name "Yankees" may be trademarked, but (I believe) you could call them "the Pinstripes" or the "Bronx Bombers" or "the Bronx Zoo" or "the Evil Empire" -- nicknames are generally not trademarked. (I can't think offhand of any Bosox nicknames that wouldn't infringe on the Red Sox trademark.)

You definitely can't portray living people negatively without inviting a lawsuit. That's why the two main characters in BACKBEAT are John Lennon and Stu Sutcliffe. At the time, Paul, George and Ringo were all still alive. Dead people have neither privacy rights nor can you libel them.

I believe you can portray living people positively, in an incidental way, without getting their life rights. (But I am not a lawyer, and nothing on this blog should be considered legal advice.)

Note that you can still write, and circulate, a script about the Sox. Circulating a script is generally not felt to be "publishing," and you're free to do lots of things in a script that you would not be free to do in a movie or a published book. You may be leaving a producer a bit of a headache, but in general I would recommend letting producers decide whether a given headache is too big for them, rather than shying away from a subject you love.

Do You Know Your Rights from Your Lefts?

Q. I wrote for a producer a while ago on an indie film. It was unorthodox, the idea being that a bunch of unknowns write it (5 of us in total) for no money. Shares would then be distributed to the writers for the film's company, thus profits going to them as well as other independent investors. The producer himself was principal writer.

Now this producer has become power-hungry. Bigger names have been brought in, rewrites have been done to the script etc. I'm now down on the script as an "associate writer". I wondered if you ever came across this term before and if you know exaclty what this means? I understand that I have no 'rights' as such but I'm considering requesting some form of payment (other than film shares) and wondered what your personal opinion was on the matter.

a. There's no such thing as an "associate writer." The WGA and WGC allow credits of "Written by," "Story by" and "Screenplay by". If you were involved in creating the original story, you would normally be entitled to a shared "Story by" credit at a minimum.

The exception would be if you guys served really as story consultants. Did you and the other guys actually produce written script materials? Or did you just kick ideas around? In that case you wouldn't necessarily be entitled to a story credit, just a script or story consultant credit.

b. It is not true that you have no rights. Did you sign a contract? If so, you have whatever rights your contract gives you.

If you did NOT sign a contract, then you still own the copyright to your work, and you can prevent its being used. The producers do not own your work unless they paid you something. You can potentially stop production or distribution of the picture if they use your work without your contractual agreement.

In your case, there seems to have been some vague kind of promise. Promises are an oral contract, but no bank or completion guarantor is going to accept a producer's word for it. If you kick up a fuss, then the producers will have to get something on paper with you, because they have to sign all kinds of documents saying they own all the rights to the script, and if they don't, in fact, own all the rights to the script, they'll be in trouble.

c. I wouldn't be too excited about receiving film "shares" in a script. Most films never go into profit, even if they make money for the production company and studio. Production companies have weird definitions of profit that mostly amount to "no profit." Net profits are commonly referred to as "monkey points."