Answers from Mark Litwak, Attorney At Law
DISCLAIMER: The information provided here is intended to provide general information and does not constitute legal advice. You should not act or rely on such information without seeking the advice of an attorney and receiving counsel based on your particular facts and circumstances. Many of the legal principles mentioned might be subject to exceptions and qualifications, which are not necessarily noted in the answers. Furthermore, laws are subject to change and vary by jurisdiction.
Question: I am interested in having an entertainment attorney submit my screenplay to production companies. How is this handled? Will producers generally read unsolicited scripts submitted this way, or should query letters be sent first? Is getting an attorney as difficult as getting an agent? And how much would it cost?
Answer: While I will submit projects for existing clients, I personally will not accept new client if all that is needed is someone to submit scripts for them. I don't consider acting as a submission service to be legal work. Other attorneys may feel differently. Cost for entertainment attorneys is usually $250-$450 an hour. Yes, you should send a query letter first.
Question: I am a CA attorney and am also acting as a producer's rep for certain projects; I'm also considering shopping just scripts for several writers. Can you recommend a practice guide or bar material (CA) that addresses talent agency issues? I am particularly looking at these issues: When does legal representation cross over into agenting; Agency-client contracts, particularly for writers and below-the-line personnel; when does pitching a screenplay for a client cross the line into agenting, where a license is required; it is my understanding that agents can't also be producers (or more to the point agencies can't also be production companies, but personal managers can, i.e., Brillstein-Grey). Also, if repping scripts is agenting, which would preclude me from producing, as I suspect it would, what do you think of the idea of flipping options (optioning material, finding a buyer, assigning the option, and taking a fee or percentage when the option is exercised), as a way around the agent issue. Thanks for the advice.
Answer: Attorneys are regulated by the state bar and agents are regulated by the state labor department. Personal managers are not regulated at all, at least not at the present time in California. The difference between a talent agent and a personal manager is this: talent agents can solicit work for their clients. Personal managers are not supposed to. If a personal manager does solicit work, they can be liable and lose all their commissions. Although I don't know of any case law on this point, I would think that lawyers who perform functions similar to agents or personal managers would be subject to discipline under the state bar, not under labor department regulations. I don't know of any publications that discuss this issue.
Question: Could you please tell me what the going rate is for an entertainment attorney services for a single $2 million independent film (shot in a non-union state? I am attempting to hire an attorney and an accountant and I live in an area where film folks are lacking (in these fields).
Answer: Most attorneys in the motion picture business who practice entertainment law full-time reside in New York or Los Angeles areas. I doubt you would want to hire someone who doesn't specialize in this practice area. The going rates vary between two and four hundred dollars per hour, but some services, such as production legal work, may be performed on a flat fee basis. Generally, 1–1.5% of the budget is spent on production legal services. Hourly rates may be misleading. If you hire an experienced attorney at $400/hour and he or she can accomplish your task in one hour, that's a better deal economically then hiring a recent law grad at $100/hour who requires eight hours to complete the same task and then may not get it right. Hire someone who knows what they are doing and who is not learning on your dime.
Question: I live in Oklahoma and I have written a couple of scripts for "The Simpsons." Unfortunately, they only accept scripts that are submitted through agents, and, since I live in Oklahoma, I don't have one. A friend of mine advised me to consult you as to whether or not it would be possible to submit my scripts through an attorney. If I can, what steps should I take to get my scripts to an attorney?
Answer: You can write to entertainment attorneys and see if they are willing to represent you. Many attorneys however, myself included, do not like to be retained by clients simply to act as a script submission service. This is not really legal work. The companies that require that scripts be submitted through an agent attorney or attorney are simply using this as a device to filter out novices. They figure if a person is able to obtain an attorney or an agent, he/she is probably not an amateur. A listing of entertainment attorneys can be found in the Hollywood Bluebook directory, published by the Hollywood Reporter.
Question: I am a first-time screenwriter who has just been offered an option on an original spec screenplay. The producer in question wants to pay a token (c. $10/mo) amount for the exclusive rights to market and develop the project. My inclination is to move forward with the option. However, since I am not represented, I have anxieties about signing any agreement that may affect the future of my work. My questions: first, is there a pro-forma model of an option agreement that I can use as a reference; and second, how do I go about attaining representation?
Answer: An option agreement is generally one or two pages, but attached to it as an exhibit is the purchase agreement which is much more extensive. There is a sample agreement in my book, Contracts in the Film and Television Industry published by Silman-James Press. It can be found in bookstores and libraries. You should be cautious about using a form that you don't understand. Other people's forms were not drafted with your particular situation in mind. As for obtaining representation, you can retain a lawyer by paying him or her a fee or you can seek an agent to represent you on a contingent fee basis. Generally, agents are looking for writers who have some track record and are sellable to the publishing or entertainment community.
Question: Everyone knows about deferred pay for cast & crew in the independent/ low-budget film world. But do any entertainment attorneys that you are aware of offer their services on an entirely or partially deferred basis? Thanks for any info!
Answer: Most experienced entertainment attorneys do not work on an entirely deferred basis. Many will give a reduced rate or accept part payment on a deferred basis for low budget films. There may be some young attorneys wanting to break into the business who would be willing to work for free.
Question: I have several screenplays that I would like to submit directly to Production Companies, as I have had no luck in gaining the services of an Agent. Can a lawyer submit a screenplay directly to a production company and how would he go about it?
Answer: Yes, a lawyer who practices entertainment law can submit your project to production companies. However, many lawyers are not particularly interested in acting as a submission service. This is not really legal work; it is more of a clerical task. For myself, I will not take on a new client if their only need is to submit projects. An agent on the other hand, works strictly on a contingent fee basis, and the whole focus of their job is to find work for their clients, and sell their client's projects. For what you need done, an agent is more appropriate.
Question: I have a TV series that I will be pitching to production companies and networks. I do not have an agent. Would it be wise to have an entertainment lawyer already on retainer? And how important is it in picking one, can some actually help steer you towards agents and production companies?
Answer: You do not need a lawyer to accompany you when you go in to pitch your TV series. Only at the point where the other side says they want to make a deal is it important that you retain an attorney. I would advise you not to try to negotiate the deal yourself. Discuss the creative aspects of the endeavor. When you get to a point where they express a willingness to do a deal, they will have their business affairs person contact your attorney. In answer to your second question, yes, entertainment attorneys can help steer you towards agents and production companies, although many of them may be reluctant to take you on as a client if that is the sole purpose for retaining them.
Question: Help! I am working on a few script ideas I have for a currently running TV series namely Frasier and I need some advice, please. I contacted the studio and was able to find out that the series accepts at least one freelance script per year. I believe I have at least one script with a very good shot. The problem is they say I must have representation, an agent, but in that department I am at square one. I have contacted and received some listings from WGA and SAG. However, is there any particular agency you would recommend especially for new writers like me? Also, agent or no, would it be wise to get a copyright for my scripts before I show them to anyone at all. Thank you.
Answer: If you are a beginning writer, you may find it difficult to obtain any agent to represent you. Agents on the WGA list are agents who have signed franchise agreements with the WGA. Therefore, if you sign with one of these agents, you will not only be protected under labor laws, but also pursuant to the contract between the WGA and the agent. I would avoid agents that purport to represent writers who are not franchised by the WGA. I would definitely not sign with an agent who is not licensed by the state labor department in those states that license talent agents.
As for copyrighting the script, you obtain a copyright to your script when you create it, assuming it meets the other requirements of copyright law. You may choose to register your copyright, which would be a wise idea at any rate.
Question: I (the ARTIST) may enter into a screenplay option contract with two separate producers who are designated together as the "collective PURCHASER" in the language of the contract. The consideration offered to me as payment is a check for $500.00. Now let's say, hypothetically, that ten weeks after all parties sign the contract, PRODUCER A wants out of the deal and asks for the consideration check to be returned. As it happens I never cashed the check and I agree to PRODUCER A's request and return the un-cashed consideration check for $500.00. My question is this. Do I still have a binding contract with PRODUCER B or would I then have to renegotiate a separate contract with PRODUCER B because both were named collectively as the PURCHASER?
Answer: If Producer A has signed the contract, he cannot unilaterally withdraw. You are under no obligation to give him his money back. Assuming Producer B was a signatory of the contract, he is bound by it as well. You need to look at the terms of the contract to determine the respective rights of the parties.
Question: Where on the Internet might I find a sample non-disclosure form or contract. I have written a teleplay and treatment and want to cover myself legally when I submit it to interested parties. Also, what else do I need?
Answer: If the interested parties are producers or studio executives, not only will they refuse to sign your nondisclosure agreement, they will probably insist that you sign a submission release instead. There are copies of these documents in my book Contracts for the Film and Television Industry, 2nd Ed., Silman-James Press. Any source
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