The Answers

The following are answers to actual questions that have been asked of the Guild.  The answers are provided as general advice only.  Advice on specific situations and especially on specific contracts should be sought from the Guild.

Use of the Copyright Symbol © – Must It Be Used To Claim Copyright?

THE QUESTION: You’ve been told that unless you use the copyright symbol © on your work then you can’t claim copyright in it.  Is that correct?

OUR ANSWER: No, that’s not correct.  The use of a copyright notice – the copyright symbol ©, followed by the name of the copyright holder and the year(s) of creation – was formerly part of United States statutory requirements to claim ownership.  This changed in 1989 when the U.S. joined the rest of the world in adhering to the Berne Convention which recognises copyright without such a notice.

However, it is always good to ensure that you are clearly named as the author on any copy of your work and using this form of copyright notice is a universally recognised way to do that.

For the avoidance of doubt it should be in the following form on the title page and also in the footer of every page if you wish: © Author’s name, 2006.

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Verbal Contract – No Payment Received

THE QUESTION: You’ve prepared a treatment for a producer, based on your idea.  You don’t have a contract because you and the producer have an ‘understanding’ which you assumed means that you’ll be paid.  But the producer subsequently doesn’t pay you.

OUR ANSWER: If you didn’t discuss payment upfront you can’t assume the producer thought they should pay you – the producer might have thought you were happy to do the work for free.  Because there has been no contract or payment you still own the rights to the treatment and can take it elsewhere.  The producer cannot and should not be using the work.  Next time get the contract in writing, then you can enforce payment.

Verbal Contract – Producer Disputes Fee

THE QUESTION:  You’ve been working on a project with a producer and negotiated some loose terms and payment for the work, though nothing was signed.  When you send in an invoice the producer disputes the fee.

OUR ANSWER: It is difficult to prove the terms of a verbal contract and unless you are prepared to walk away without payment (thus retaining the work you did) you must accept what the other party is prepared to pay.  Next time ensure that you have written contracts with agreed terms.  That way all parties can operate with some certainty.

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Verbal Contract – Writer Receives Funding Instead of Producer

THE QUESTION: You are a producer and work with a writer on a script and take it to a funding body.  You didn’t have a contract because you trust the writer.  The funding body is excited by the script and grants the project money for a draft.  However, the grant is to the writer, not to you.

OUR ANSWER: The Guild is strongly supportive of funding bodies contracting directly with writers, especially where the writer is a proven talent.  However, not tying up the legal loose ends can affect not just the writer, but the producer.  In this case you are effectively shut out of the situation.  It is vital that all parties in a project ensure their rights are adequately supported with contracts.

Finding a Writer – I’ve Got a Great Idea, Will Someone Pay Me To Write It?

THE QUESTION: You’ve got a great idea and want to turn it into a script.  Someone should be paying you to write it, correct?

OUR ANSWER: No.  Working in a largely state funded system like we do in New Zealand can make us all feel we ‘deserve’ to be funded.  The hard truth is that nobody owes writers a living.  Most funders and producers want to see a script rather than just an idea.  So get writing!  Most successful writers in Hollywood wrote many scripts on their own time before they sold one or were given a commission.

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Writing On Spec for a Producer – Can You Ask To Be Paid?
THE QUESTION: A producer came to you with an idea and you’ve written several drafts of a script based on that idea.  The producer says you won’t get paid until/unless they receive funding.  There is no contract governing the relationship. You’re tired of working for nothing and want to be paid now.

OUR ANSWER: You have been working on ‘spec’ for someone else which means the producer has asked you to work for nothing.  The Guild discourages this type of work as it’s unfair to the writer who is effectively taking all the risk in the project.  If you want to be paid then you will have to ask for payment which means negotiating a contract.  Until you are paid any work that was completed by you it is your property and cannot be used by the producer for any purpose without your permission.  However, if you previously agreed they could shop the project around you probably cannot stop them from taking it to funders etc.

Writing On Spec For a Producer – Making Changes to Your Own Script At Producer’s Request

THE QUESTION: You took a script to a producer.  They like it but want you to rewrite it before they make a decision on whether to option it.  You don’t want to do any work unless its paid.

OUR ANSWER: Writers should normally be paid if being directed to do work.  However if the work is to your benefit, it is your own script, the producer is someone who could further the project and the work is not too major, you should consider making the changes.

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Paying Back the Option Fee

THE QUESTION: The producer has optioned your work but the agreement says that if the work isn’t produced then you have to pay back the option fee OR if it does go ahead that the option fee will be deducted from the purchase/script fees – is this typical?

OUR ANSWER: No.  The option fee is paid in recognition of you taking your work off the market for a certain period of time – it gives the producer the exclusive right to shop the project around and obtain rights in the work.  This fee should not be deducted from any further payments.

Making Handwritten Changes on Contracts

THE QUESTION: You and the producer want to make some handwritten changes to a contract before signing – is there any special way you should do this?

OUR ANSWER: You can simply write changes onto the contract and each of you should initial beside each change.

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Breaching Copyright – Discovering Someone Has Previously Put Out Similar Work

THE QUESTION: You’ve written a great script about an android sent from the future to kill someone.  But someone has just told you there was a whole set of movies based on that theme.  What should you do?

OUR ANSWER: It’s very hard to tell a brand new story and if all you’ve done is unwittingly used an already existing central idea your script might still be original.  You should view the other work and see what similarities there are. If you have unknowingly created a very similar story you will need to alter your story so that it does not breach their copyright.  Now that you know there is other work out there based on a similar scenario you must also face the question of whether anyone would be interested in producing your script.

Breaching Copyright – Discovering Someone Has Subsequently Put Out Similar Work

THE QUESTION: You sent your script to a production company who turned it down.  Several years later you see they are producing another work with some similarities to your work.  What can you do about it?

OUR ANSWER: Any legitimate producer is not in the business of stealing work – it is far easier simply to buy a script than steal one.  But copyright theft can and does happen.  How similar is the work?  The more similar it is the more likely it is that the work was stolen.  For example, is it just a similar idea, similar presentation of the idea or has distinctly similar elements in the presentation?  Proving that someone stole your work is difficult.  You will need to have evidence of your work existing before theirs and that they had knowledge of your work.  If you feel you have a strong case you should consult the Guild about an appropriate course of action.

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Definitions – Author vs Writer vs Scriptwriter

THE QUESTION: Your contract describes you as an ‘author’ – isn’t that the wrong word to describe you?

OUR ANSWER: Some contracts use the word ‘author’, some use ‘writer’, some use ‘scriptwriter’.  In most cases whether you’re called one or the other doesn’t matter.  What does matter is that various conditions in the contract are correct – such as the description of the work you are being contracted to do, the delivery dates and the rates of pay.

Using Someone Else’s Idea – Idea Overheard

THE QUESTION: You had a conversation with another writer and want to use an idea you heard them talking about.  There’s no copyright in an idea so that’s okay isn’t it?

OUR ANSWER: Legally yes, morally no.  Stealing the ideas of others is a very fast way to lose friends in the industry.

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Using Someone Else’s Idea – Published Work

THE QUESTION: You’ve read a book that you really liked but couldn’t get the rights to option it for adaptation.  Is it okay to just go back to the original concept in the book and write a script from that?

OUR ANSWER: By going back to the idea you might be able to skate around copyright law (there is no copyright in an idea) but the moral question remains – should you be doing this?  The answer is no.  It is one thing to see another person’s work and be inspired to create your own.  It is another to wilfully use their work, with changes.

Using Songs/Extracts From Prose Work in a Script

THE QUESTION : You want to use a certain song or have the characters recite a poem or an extract from a novel in your script.  How much can you use before you have to obtain the rights?

OUR ANSWER: Once the original work can be identified you are effectively liable to obtain permission from the rightsholder to use it.  The APRA (Australasian Performing Right Association) website has good information on obtaining licences for music.  For prose or poetic material you should contact the last publisher of that work for permission.

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Using Someone Else’s Work – Re-imagined Stories

THE QUESTION: You re-imagine a famous work (eg. write Moby Dick from the whale’s perspective) or set a new work in an already existing locale (eg. write a new adventure set in Tolkien’s Middle Earth) – do you need permission?

OUR ANSWER: If the work is out of copyright then you can utilise it, although the copyright in some works has been effectively extended by the estates of the original authors and the only way you will know this is to approach the rightsholders.  If you are using any work still in copyright then you will need the permission of the rightsholders.  Often this type of work can come across as fan-fiction (‘fan-fic’) which is not usually a commercial genre – you should consider whether you are doing this type of work for your own enjoyment or whether you are seriously re-imagining someone else’s story.

Optioning a Book – How To

THE QUESTION: How do you option a book for the purpose of adapting it?

OUR ANSWER: You should contact the most recent publisher of the book who will likely know whether an option has already been taken over that book.  If the publisher is not the rightsholder they will likely know who you should contact.  If the rights are available then you will negotiate with the publisher or rightsholder (i.e. the author) over the terms.  A fuller explanation of options can be found here.

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Using True Stories

THE QUESTION: A friend told me a story some years ago that happened to someone they know.  What’s the legal situation with true stories that haven’t been reported in any form?

OUR ANSWER: Writers are like magpies, we grab stories from various sources and incorporate them into our work.  The key with using these types of stories is to ensure you change certain facts so that the real life individuals cannot be identified – otherwise you might risk defamation (which means bringing the subject into disrepute).  Alter the name, age, gender, location or other key facts to disguise the origin of the story.

Using True Stories That Have Been Published

THE QUESTION: I saw or heard a fantastic story in the newspaper/on the TV/in a magazine/on the radio – can I base a fictional work on that?

OUR ANSWER: You could be breaching someone’s copyright (the subject may have already sold the rights to their story) or risk a defamation suit.  If you change sufficient details or, preferably, go right back to the idea of the story you will avoid these types of problems.    However, if the story is published in detailed form (e.g. an indepth newspaper feature or magazine article) it will be difficult for you to avoid breaching copyright in some way.  Think about optioning the work.

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Using True Stories – Real-Life Person Wants Credit

THE QUESTION: You’ve written a script based on events from someone’s life story but that person says they should get a Written by/Created by credit.  Correct?

OUR ANSWER: No.  Credits are given to writers for crafting a work.  Here you have the subject of the work expecting a credit that they are not entitled to.   Discuss other appropriate credit options with them, as a script consultant for example.

Writing Real-Life Accounts of True Stories

THE QUESTION: I’m writing a real-life account of a true story – what issues do I need to be aware of?

OUR ANSWER: If a living person is the central character it’s a good idea to involve them in the writing.  If you are telling the story of an event you will want to engage or interview those involved where possible, especially if it is a sensitive event.  This will ensure these people feel they ‘own’ the story, making them less likely to block the progress of the production or bring defamation type suits upon its release.

If you are portraying real people in a questionable light you need to be aware that they might take umbrage and again, sue for defamation.  The truth is always a defence to defamation, though you do need to be very clear what the ‘truth’ is.

Confidentiality is also an issue – has the information you intend to use been obtained through a confidential relationship (like a therapist or priest?) or been given to you on the basis of trust or friendship?

If you are writing a real-to-life project then you may need to insure yourself against claims but if it is being written on commission the producer should take responsibility for any legal claims arising from the work.

Overall you do need to be aware telling ‘true’ stories about real people is incredibly complicated and seeking firm legal advice before you begin is a good idea.

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Using Copyrighted Material – Pop Culture References

THE QUESTION: In one scene in your script you have characters talking about a television show/novel/board game/advertisement etc.  Do you need permission from the rightsholder?

OUR ANSWER: No.  The difference here is between actually using material (eg. writing a play based on the film Citizen Kane) and making reference to the material (eg. having characters joke about the other things ‘Rosebud’ could have actually referred to).  Copyright law allows certain reasonable uses and incidental use in an artistic work will likely fall within that category, especially if it’s for the purpose of review, comment or satire.  If it goes beyond this type of incidental use, however, you will need permission.

Adapting a Novel – Collaboration with Original Author

THE QUESTION: I’m adapting a novel, should I collaborate with the original writer?

OUR ANSWER: Collaborating with the original author comes with advantages and disadvantages.  The original author can give great insights into paring the work down for another form.  However, they may also hold very set notions about the story or not understand the medium you’re working in.  Obviously these issues will vary from author to author.

There is also a difference between collaborating and co-writing so you should ensure you know what the relationship is.  Collaborating would involve the original author reading scripts and providing informal or formal notes for which there may or may not be any payment.  Often in this situation original writers are involved like script development consultants to provide in-depth suggestions and advice during the entire development process.

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Adapting a Novel – Original Author Requests Final Say Over Script

THE QUESTION: You want to adapt a novel but the original author demands they have final say over the script.

OUR ANSWER: Filmmaking is a collaborative art and given that, it is unusual for any one person to have final say over a script, especially the original author of an underlying work.  You could promise to consult in good faith with the author, give them opportunities to view the script and input into the direction of the story.  Meaningful and sincere consultation should be encouraged.  But if you grant them final say you will likely make it difficult if not impossible to move forward later on when others – a producer, director, funder, financier, distributor – become involved in the process.

Using Iwi/Family Stories Which Have Already Been Used by Another Writer

THE QUESTION: I want to tell a story from my iwi/family which another person has already used in another work.  Does this mean I cannot use the story?

OUR ANSWER: Once someone else has told a story you must find a way to tell that same story without breaching their copyright – without using their specific language, style etc.  If you can go back to the source material and do that then you can use the story.  However, this can be a murky area.  It might be a good idea to discuss this with the first person before you begin.

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Using Maori Stories/Themes/Places/History

THE QUESTION: I want to write a story with Maori themes/places/history – what do I need to know?

OUR ANSWER: There are two competing notions here – that stories belong to everyone so can be used without seeking anyone’s permission and that stories can belong to certain communities.  People from most cultures would expect that if you are using their stories you would do so in an appropriate manner and for this you will need to find out what is, in fact, appropriate.

This is a complex area, different in every specific circumstance and Nga Aho Whakaari has created a document which will assist anyone considering writing Maori stories.  If you have set a story in a certain area of New Zealand which may have cultural significance you should certainly consult with the local iwi.

Collaborations – Disagreeing on Getting Work Produced

THE QUESTION: You’ve written a script with another writer.  The other writer wants to try to get the script produced but you think it’s a waste of time.  What should you do?

OUR ANSWER: You have two choices.  Firstly, sell your complete share in the script to the other writer for an agreed sum.  However, if the script later sells you will miss out on any purchase price or profits.  Second, agree with the other writer that they can pursue getting the script produced but that you will share in the purchase price/profits at an agreed percentage.  Such an agreement should be in writing.  You should also make it clear that no matter what happens you must still be appropriately credited as a writer on the project.

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Collaborations – Falling Out With Co-Writer

THE QUESTION: You’ve written a script with another writer and had a falling out.  You both want to continue working on the script, but not together.  What do you do?

OUR ANSWER: You could both work independently on the script but this will cause headaches further down the track and the competing projects could actually make it harder to get the script produced.  As hard as it may be it is best if one of you takes control of the script while the other agrees to be compensated if and when the script receives funding/is made.

Collaborations – Writing Separate Scripts Off Same Original Script – One Script Receives Funding

THE QUESTION: You worked on a treatment with another writer and parted ways – both writing separate scripts off that treatment.  The other script has been optioned and received development funding – don’t you deserve a share of that?

OUR ANSWER: What was your agreement with the other writer when parting company?  If there was an agreement, that sets the terms of the share, if any.  If there was no agreement the situation is messy, but it could be inferred that since you wrote separate scripts you were both relinquishing a claim to any rights over the other writer’s script.  You may still deserve a final ‘Story by’ credit if the work is indeed based on your co-written treatment.

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Collaborations – One Person Independently Uses Joint Work

THE QUESTION: You worked up a group of ideas with another person some time in the past.  Subsequently the other person worked on one of the ideas with someone else and now that project looks set to get made.  Can they do that?

OUR ANSWER: Was there an agreement between the two of you?  If so the status of joint ideas will be governed by the terms of that.  If there was no written agreement or simply a verbal agreement then talk to the other writer and establish that the work was indeed joint property and that it should only be used by joint agreement.  If there is no contract and you cannot sort the matter out informally there is likely little you can do in a legal sense unless you can show that the work constituted more than an idea and that it was created jointly.  Ultimately it may be that the problem is a moral one – why is a writing partner using joint work as though it were their own?  If someone uses your work without your permission they shouldn’t be trusted – don’t work with them again.

‘Further Series’ – Definition

THE QUESTION: You co-created a television show and the contract allows the producer to create ‘further series from the work’ but stipulates you will get a payment if they do.  The producer wants to do a spin-off using one of the characters and says its not a ‘further series’ but a whole new show.  The contract doesn’t mention anything about spin-offs and doesn’t define ‘further series’.  What can you do?

OUR ANSWER: In the absence of a fuller definition you would look at what most people would understand as a ‘further series’.  Most contracts stipulate that any use of any element from the original work – including characters – is a further use.   In this case, however, the contract makes it clear that only further ‘series’ are covered, though you could define a show starring a character from the original work as a ‘further series’.  This matter is, at best, debatable and it is certainly worth your while getting further legal advice.

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Writing Teams – Double the Fee?

THE QUESTION: You work with another writer as a team.  Does that mean you can negotiate a higher fee?

OUR ANSWER: You can try but there’s no automatic reason a producer should pay you more just because you choose to work with someone else.

Titles – Registration

THE QUESTION: You’ve registered your work with the NZWG.  That automatically means if someone else uses the title then you can stop them – correct?

OUR ANSWER: No, that’s not correct.  There is no copyright in a title (they are effectively too insubstantial to attract copyright) and so while titles can be registered per se, this doesn’t confer copyright over them.

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Titles – Registering as Trade Mark

THE QUESTION: You have a great title and you really want to protect it.  Can you register it as a trade mark and guard it that way?

OUR ANSWER: No.  In New Zealand the term “trade mark” is defined as “any sign capable of being represented graphically and distinguishing the goods or services of one person from those of another person”.  A “sign” is defined as including “a brand, colour, device, heading, label, letter, name, numeral, shape, signature, smell, sound, taste, ticket, or word; and any combination of signs”.  A title alone doesn’t fall within this definition.  If you have a company called after the name of your title, you can register that.

Change in Working Relationship – Collaborator Becomes Producer

THE QUESTION: You’ve been working with another person in an informal capacity as collaborators writing a script together.  The other person has undertaken the job as producer and asks you to sign a contract which effectively gives them final say over the script.  Shouldn’t they take into account the original relationship and make all script decisions a collaborative decision?

OUR ANSWER: Creatives will often take various roles in a production and to successfully undertake each task they need to have sufficient rights and powers.  A producer will need different rights and powers from a collaborating writer and it is reasonable for them to expect this.

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Confidentiality Agreement Breached

THE QUESTION: You got someone to sign a confidentiality agreement which they then breached by showing your script to someone else.  What are your options?

OUR ANSWER: What does the agreement say will occur in the event of a breach?  What damage has truly been done?  Has your work suffered or are you merely put out?

In reality there is little you can do in this circumstance unless you can quantify the damage done by this breach of confidentiality and then bring a suit against someone for that amount.  This would only be worthwhile if the breach cost you a significant amount of money which is unlikely in most cases.

If, due to the breach, someone steals your work or uses it without your permission that is a different matter – this type of misconduct is certainly actionable.

Devised Work – Credit and Royalty When Later Used By Others

THE QUESTION: Several years ago you devised a play with several other people and at the time everyone agreed on credits and payment.  Now the other devisers want to perform the work without you and say that because you’re now not involved you shouldn’t get a credit or be paid a royalty.

OUR ANSWER: The issue with devised work is proving ownership.  Unless there is a contract or some evidence of creation proving who holds the rights can be difficult.  In this situation, however, if you had been credited and shared royalties in the past there is a good case for arguing all parties accepted you as a creator in the past and should continue to do so in the present.  As a creator you can enforce your rights to be consulted and to share in credits/profits.

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Assignment – Writer Must Consent

THE QUESTION: You want your contract to state that the producer can only assign (i.e. transfer their rights under the contract) with your consent (as opposed to there being no restrictions or assignment with consultation).  Will that be acceptable to the producer?

OUR ANSWER: It depends on your bargaining power.  If you have a work they are very keen to produce you might be able to negotiate such a provision but it is more than likely a producer will not want to be bound by this condition.

Assignment – Producer Assigns Rights To Someone You Don’t Like

THE QUESTION: Your contract allowed the producer to assign the rights to your script and only required to consult with you.  They did, you objected to who they intended to assign to but they went ahead anyway.  Can you do anything?

OUR ANSWER: It does seem unfair that a producer can make an assignment to someone the writer isn’t happy with.  Can you truly not work with this new producer or are you simply put out at being passed from one producer to another?  In this case you are bound by the contract and must carry out duties as per the agreement.  If you are very unhappy you could always use any buy-out or termination provisions that exist in the contract.

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Payment after Recoupment of Investment – Will You Get Paid?

THE QUESTION: A producer wants to pay you some money upfront for the rights and a subsequent amount once the movie has been made and ‘the investors have recouped their investment plus their negotiated return’.

OUR ANSWER: You should ensure the upfront fee is adequate.  With the ‘recoupment’ conditions imposed on the subsequent fee it is possible and even likely you would never receive it as this may never happen.  Films don’t always return their full investment.

Payment – Producer Goes Bankrupt

THE QUESTION: You completed a script as a contractor for a producer who then went bankrupt.  How can you get paid?

OUR ANSWER: Under insolvency law certain creditors take precedence over ‘unsecured creditors’.  Payments due to a contractor are regarded as unsecured meaning you have to wait in line until others – including the Official Assignee and any employees – are paid.  The other problem here is that the Official Assignee may regard your script as an asset and try to on-sell it, meaning you don’t get paid AND you lose the rights to your script.

However, if your contract says that the rights to the script don’t pass to the producer until payment is made you can argue that you have a retention of title clause and that the work should remain with you.  These types of arguments are assessed by the Official Assignee on a case by case basis.

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Researcher – Difference Between ‘Research’ and ‘Creating a Concept’/’Story-work’

THE QUESTION: You’re doing research for a project which is governed by a simple research contract.  In the course of researching you also come up with a concept and storyline.  The producer wants to use that material but says they don’t need to pay you extra as it was part of your original contract.  Is that correct?

OUR ANSWER: If the contract is drafted widely to cover the rights to ‘all materials, ideas, stories that arise from your research’ then yes, the producer can use the material.  If the contract is drafted more narrowly then the situation is arguable and you should challenge the producer’s assumption.  ‘Research’ is essentially collecting information.  Creating a concept and storyline clearly goes beyond this and any further use of this material should be negotiated separately.  No matter what, if you create a concept or story there will be credit issues – if the producer wants to use that work they will need to credit you appropriately.

Weekly/Monthly Contracts

THE QUESTION: You have been offered some script work on a weekly contract/rate – should you take it and what should the rate be?

OUR ANSWER: Weekly work can give writers some extra security as it is usually done on term contracts that can be measured in several weeks or months.  Before signing on to a weekly contract make sure you are happy to be engaged for a set term.

You should also be aware that in certain conditions this type of contracting may make you an employee rather than a contractor.  Make sure you understand the difference.  Rates vary from project to project and you should check out the Guild’s rates guide.

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Revisions/Polishes – How Should they be Defined?

THE QUESTION: Your contract includes provision for the writer to provide “revisions to the First Draft to the satisfaction of [the Producer]”.  There is no definition of ‘revisions’ in the contract, no fee for them or any limit on how much rewriting the producer can require.

OUR ANSWER: It is important to provide a definition for ‘revisions’, often also referred to as a ‘polish’.  The Guild’s Model Contracts limits revisions/polish to 15% of the script.  You should also ensure you are only making one unpaid revision.  Any further rewriting should require an agreement over payment and this payment should not be less than 15% of the fee for a draft of the script.

How Much NZFC Script Funding Should a Writer Receive?

THE QUESTION: The producer has received funding from the New Zealand Film Commission for you to write a first draft script but will only give you 50% of it – is that usual?

OUR ANSWER: No, in our experience at least 75% of the first draft funding should go to the writer.  The majority of funding for subsequent drafts should also go mainly to the writer.

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Overseas Television Rights – Does the Writer Get a Share?

THE QUESTION: You created a reality show for New Zealand television and the producer/network love it.  Can you negotiate a share of overseas television rights/profits?

OUR ANSWER: Yes, you can try to negotiate that.  It is fair that a writer share in any profits from their work and especially so if you have created a potentially lucrative product (such as a reality show format).

Buying Back Rights Sold To a Producer – Producer Adds Costs/Extra Charges

THE QUESTION: The script you had in development isn’t going anywhere and the producer has offered to sell it back to you for their development costs plus 10%.  Isn’t the script already yours and why should you pay them an additional sum of money on top of their costs anyway?

OUR ANSWER: The original script is yours but if you were paid for rewriting it the developed work (i.e. the latest draft of the script) is in fact the property of the producer.  Neither of you can actually do anything with the developed work because you own the underlying rights but not the developed work and vice versa for the producer.  If you want the script back reimbursing the development costs isn’t that unreasonable unless all this money only came from an outside funder and the producer isn’t being asked to pay the funder back – in this case the producer is effectively double dipping (i.e. they’ve given you money from a funder, asked you to pay that back but not returned the money to the funder).

Having to pay an extra 10% does seem a little steep but producers have overheads which they will seek to recoup.  If you don’t have to pay this money upfront (and most writers won’t) you could try to get the producer to agree to this payout on the first day of principal photography.

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Buying Back Rights Sold To a Producer – Producer Won’t Set Reasonable Buy-Back Fee

THE QUESTION: A producer isn’t interested in pursuing a developed script any further.  You have another producer interested but the first producer won’t sell the script for any reasonable sum of money.  The contract doesn’t mention the specific sum for which they will sell it back to you.  Can you force them to be reasonable?

OUR ANSWER: No.  If they own the rights to the developed script and if there is no agreement in a contract on what the producer must sign the rights over for, they can decide what to sell it back to you for.

Rewriting a Script Sold To a Producer – Producer Won’t Sell Back Rights

THE QUESTION: A producer won’t sell me back the rights to the developed script.  He owns the developed script but I own the original script – can’t I just rewrite that again?  What if I even go back to the treatment and rewrite the script from there?

OUR ANSWER: It would be very difficult, if not impossible for you to do this in a way that doesn’t breach the copyright in the developed script or at least create a muddy situation that might only be cleared up with litigation.  Sometimes it is best to simply move on to another script.

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Payment for Work – Contract only speaks of ‘mutual financial benefit’

THE QUESTION: Your agreement with a producer doesn’t contain any reference to you being paid for writing other than that you will work together for your ‘mutual financial benefit’.  The producer has funding off your script, do they need to pay you anything from that?

OUR ANSWER: A vague clause like this leaves it questionable whether payment needs to be made.  Here there is no reference to actual amounts to be paid for certain work and it is difficult to quantify or enforce any payment.

However, until some type of payment is made the producer does not hold the rights to the script, the writer does.  Most funders would not hand down payment until they are sure the producer legitimately holds or can buy the rights.

Payment for Work – Producer Won’t Pay Although Work Is Done

THE QUESTION: You did the work and delivered the script but the producer hasn’t paid and is dodging your calls but you know they’re passing the work to the funders – what can you do?

OUR ANSWER: What does the contract say about payment – due on delivery or within a certain time after delivery?  If there are default provisions in the contract (ie. if they don’t pay within three weeks of delivery you can charge them interest) then use those.  Also, contracts typically provide that if there is no payment then the rights do not pass to them.  Remind them of that.  Copy the Guild into your correspondence.

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How To Negotiate a Share of Residuals/Profits

THE QUESTION: I want to negotiate a share of the residuals or back-end/profits – what do I need to know here?

OUR ANSWER: Most writing contracts in New Zealand do not cover residuals.  This is not to say that writers in New Zealand cannot negotiate for a share of these but they would likely only be given to experienced writers with a proven track record.  Writers often negotiate a share of net and/or gross profits (also known as ‘points’).

Gross profits are the total profit from a work.  Net profits are these gross profits minus various costs such as distribution, production, marketing etc.  Gross profits are obviously far more valuable.  It must be noted that many films in New Zealand do not return a gross profit, let alone a net profit.

How Valuable Are Merchandising Rights?

THE QUESTION: How valuable are the merchandising rights to a film?

OUR ANSWER: The value of merchandising rights depends on the type of film.  Animated and children’s films tend to be more merchandisable than other films.  As a result it is probably worthwhile trying to negotiate a share of the merchandising rights for animated and children’s films, not so worthwhile for other projects.

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Release Form – States ‘Identical Ideas or Elements’

THE QUESTION: You want to submit some work to a production company.  However, you are concerned that the release you are asked to sign says “I understand that use of material containing ideas, stories, materials and elements similar or identical with those contained in the Work shall not entitle me to any compensation”.  Does that mean the company could legally use your script without payment?

OUR ANSWER: Yes.  Production companies need to ensure they are protected from fraudulent claims of copyright theft.  And that’s fair.  However, in drafting a clause that allows them to use ‘identical’ features they are actually opening the door to allow them to use your work for free.

The chance that they have an absolutely ‘identical’ work (given that ‘identical’ means exactly the same) is infinitesimal.  More like the work will be similar, even extremely similar.

Therefore, if a contract says ‘similar’ material, this is reasonable.  When you see ‘identical’ used in release forms do not sign it.

Credit – Decided Upfront

THE QUESTION: You want to ensure you are given an appropriate credit and ask the producer to agree upfront on the writing credit you will be given.  They say they can’t guarantee you will receive that credit.  Is that correct?

OUR ANSWER: Yes.  No producer can guarantee a writing credit upfront because other writers may also work on the script and their involvement may alter the credit you receive.  Your contract should allow for you to receive an appropriate credit and contain credit arbitration provisions.  That way any credit issue can be sorted out at the end of the writing process.

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Credit – Contract Predicates Receiving Credit in ‘Professional and Timely Manner’

THE QUESTION: Your contract with a producer states you will get a credit if your work is used and you have rendered services in a ‘professional and timely manner’.  Does that mean they can not credit you if you deliver work late?

OUR ANSWER: This is debatable and would likely not stand up if challenged.  If your work is used you should be fairly credited.  Late delivery may affect payment but it should not be used to deprive you of credit.

Credit – Contract States Producer Will Decide Appropriate Credit

THE QUESTION: Your contract says that the producer will decide what is an appropriate credit – is that fair?

OUR ANSWER: No.  Credit is a matter that should be decided by the writer(s) as a producer, despite their best intentions, may give an inappropriate or even fraudulent credit (there have been cases where a producer unjustly granted themselves a writing credit).  Credit clauses should clearly state the various credits that might be given and leave any disputes on credit to the Guild who can determine them independently and fairly.

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Credit – When Do You Get a ‘Created By’ Credit for Television?

THE QUESTION: A producer came to you with an idea for a TV show and you worked it into a treatment and series bible.  Should you share a Created by credit?

OUR ANSWER: It depends on exactly what contribution you made.  If indeed your contributions were significant enough – that you were a major contributor to the series’ distinctiveness and viability – then you should get a Created by credit.  Below this is the Developed by credit where your contributions were not significant enough to warrant the Created by credit.

The line between the two is often not clear.  If you worked the show up from literally a two line idea then that would more likely warrant a Created by credit than, for example, if you had worked it up from a two page outline (where a Developed by credit may be more appropriate).

Credit – The Difference Between ‘Writing’ and ‘Editing’

THE QUESTION: You were engaged as a script editor for a script but during the process the other writer liked your work and you ended up doing a lot more writing on the script than originally intended.  You think you deserve something more than a script editing credit.

OUR ANSWER: The line between ‘writing’ and ‘editing’ can sometimes be blurry – though an editor will normally take a less involved role and make less significant changes than a writer.  How much work did you contribute to the final script?  Credit rules state that if it is an original script the new writer would have to add 50% new material to be deserving of a Written By credit.  For an adapted work the new writer needs to add 33% new material to share in the Screenplay by credit.

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Credit – Director Wants ‘A Film by’ Credit

THE QUESTION: You’ve worked up a fantastic script.  The producer has brought on a director who wants to take ‘A Film by’ (vanity) credit.  The producer says that the director ‘deserves’ it.  What can you do?

OUR ANSWER: Unless your contract with the producer stated that no one on the project will receive a vanity credit then there is no way you can prevent this.  Contact the Guild – the Guild is always happy to discuss the use of the vanity credit with producers and directors.  More experienced writers with a proven track record may be able to negotiate the following clause into their contracts:

Possessory Credit Not To Be Given – The Producer shall ensure that no other creative on the project, including the Director, is given any form of possessory credit including, but not limited to, a credit in the form of ‘A Film By (the creative)’, ‘A (the creative) Film’ or ‘(the creative)’s Film’.  For a Producer who wishes to capitalise on the Director’s name or reputation the credit ‘A Film Directed by (the Director’s name)’ is acceptable.

Credit – No Credit Arbitration Clause in Contract

THE QUESTION: The Guild’s contracts allow for a credit arbitration process overseen by the Guild but the producer doesn’t think that’s necessary or wants some other person/group to do that – is that okay?

OUR ANSWER:  No.  Credit disputes are disputes between writers and it makes sense that an independent writer’s organisation like the Guild arbitrates in these cases.  The Guild has specific rules that govern what credits should be given and a set process for determining credit disagreements.  Further, the Guild’s process is free – and what producer wouldn’t want to hand over a credit dispute to the Guild to sort out?

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Indemnity Clauses

THE QUESTION: Your contract says that you will indemnify the production against any claims or law suits but the producer is also contributing material to the production,  Shouldn’t the contract reflect this?

OUR ANSWER: Yes, that is fair and most producers would agree to such a clause.  Indemnity clauses are usually drafted against the person who submitted the material so that you promise to take responsibility for any material you put or were directed to put into the script and the producer takes responsibility for material they directed you to put in.

Other Writers Being Engaged To Rewrite – Consent

THE QUESTION: The contract the producer has given you says that other writers can be brought on to make changes to the script without your consent.  Surely that isn’t correct?

OUR ANSWER: Filmmaking is a collaborative medium and it is typical for a producer to be able to take writers off a project, even their own original script.  Sometimes this is necessary as even the best writers don’t always hit the mark or can lose their way with a script.  But that doesn’t make being replaced any easier.

A fair mid-point here is if the writer is consulted before another writer is engaged.  That way you can discuss all the issues with the producer and, if another writer is to be brought on, you at least have some say towards who that might be.  It is unlikely that producers will consent to writers being bound by this consultation.

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Other Writers Being Engaged To Rewrite – Credits

THE QUESTION: Another writer is engaged to rewrite your script.  The producer says they automatically deserve a credit – is that correct?

OUR ANSWER: No.  Credit rules state that if it is an original script the new writer would have to add 50% new material to be deserving of a Written By credit.  For an adapted work the new writer needs to add 33% new material to share in the Screenplay by credit.

Animation – What Is the First Day of Principal Photography?

THE QUESTION: What is the first day of principal photography on an animated project?

OUR ANSWER: The development process and start of animating the film overlap in a way not common with live action so the exact first day of principal photography is not always clear.  If the goal is for a trigger for a payment perhaps both parties should choose a firm date that effectively begins the production process such as the approval of the film budget or the first recording of dialogue with a paid performer whose voice will appear in the final work.

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Is There GST On an NZFC Development Loan?

THE QUESTION: Your producer has been granted funding from NZFC for a first draft script. You want to invoice them for the entire funding received (which is your agreed fee + GST). But the NZFC doesn’t give GST on their grant, arguing that it’s a loan and so it doesn’t apply. The producer is reluctant to pay the GST if they can’t reclaim it, but that means you still have to pay it to the IRD, effectively reducing the fee by 12.5%.

OUR ANSWER: IRD confirm that the transaction between NZFC and the producer is, in fact, a ‘loan’ and therefore exempt from GST.  However, the transaction between you and the producer is payment for a service and does attract GST.  Unfortunately this means that writers will always be 12.5% worse off given that they have to account for GST on a sum that didn’t originally include GST.

Being Engaged As Both Writer and Director – Reduction in Fees?

THE QUESTION: I am being engaged as both a writer and director on a project and the producer says I should take a reduced fee because of that.  Is this fair?

OUR ANSWER: No, it isn’t.  Being hired in a double capacity is not a 2-for-1 deal.  The writing and directing are both very distinct tasks.  You are performing different jobs and deserve to be appropriately paid for both.

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Restraint of Trade – Contract Says You Can’t Take On Other Work

THE QUESTION: There’s a clause in your writing contract that says you cannot take any other script work while you are under contract or you must inform the producer before taking any other work.  Is this fair?

OUR ANSWER: No.  This is known as a restraint of trade clause.  While it could be expected under an employment agreement, if this is a true contract for service then the producer can not and should not stop you from taking on any other work.  They can legitimately expect you not to breach the confidentiality of your work, to ensure you give your best to the project and don’t take on too much other work so you can’t deliver work on time – these matters can be covered by other specific clauses.

Total Fee is Percentage of Production Budget – Should It Be Capped At a Certain Amount?

THE QUESTION: Your contract says that your total fee will be a certain percentage of the production budget, but it is also capped at an upper limit.  Is that fair?

OUR ANSWER: Typically most fees based upon percentage shares will be capped at a certain amount, therefore, it is important to negotiate an upper limit that you are comfortable with and that you think is fair.  You can always stipulate that if the budget goes past a certain dollar amount that you will receive an extra percentage of that production spend.

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What are Collection Societies?

THE QUESTION: You’ve heard that you can receive money from collection societies for your work – what are they and how can you obtain that income?

OUR ANSWER: New Zealand writers currently have access to two collection schemes Screenrights which collects a levy for use of screen material by Australasian educational institutions and AWGACS (the Australian Writers Guild Authorship Collecting Society Ltd) which collects a levy based on works broadcast on television overseas.

The income from such agencies and societies is rarely huge but is certainly worth pursuing as New Zealand writers don’t usually receive residuals for the re-use of their work.  The clause below will enable you to access these monies.  Without this clause the collected writer’s levy will either go to the Producer or stay inaccessible with the international collection agency.

“Nothing in this Agreement shall prevent the Author from receiving money collected by authorised collecting societies of any country in respect of any rental and lending rights and/or in respect of any educational copying, retransmission or private copying levy and/or in respect of the other similar rights to which the Author may hereafter become entitled under the laws of any country in connection with the exploitation of the Film provided that nothing herein shall impose any obligation on the Producer to make or collect such payments.”

Deferring Fees to First Day of Principal Photography

THE QUESTION: The producer is keen to produce your script but there is little money available upfront though once finance is through you can be paid on the first day of principal photography.  You like the producer and want to see this script on screen.  How much of your fee should you defer?

OUR ANSWER: In New Zealand there is no limit to how much of the fee can be deferred.  Deferring means delaying payment and if the fee is delayed to the first day of principal photography, then the film is never made, the fee is never paid.

The Guild prefers writers to be paid as work is delivered but if a writer wants to defer a fee then that is their choice though the Guild recommends deferring no more than 50% of the fee.  It is the producer’s job to take a risk on a script so in deferring a fee the writer is also bearing that risk.  Given that, if deferring a fee a writer should also negotiate some other monies, for example a higher fee, a share of residuals or gross profit.

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Script Competitions – Are They Safe?

THE QUESTION: You saw a script competition advertised in the Guild’s publications.  Is it safe to enter?  Won’t someone just steal your script?

OUR ANSWER: Contests can be a good way to get your work overseas.  Most of the bigger competitions and/or contests that have been running for several years or more are legitimate.   Check out www.moviebytes.com for a good list of contests. If in doubt about a competition contact the Guild.

Approach from Overseas Company

THE QUESTION: An overseas production company has gotten your name and contact details from this site and has approached you and asked you to submit a script(s) to them.  They sound very keen.  Is it safe to send to your work to them?

OUR ANSWER: Most companies do not tend to seek out writers and scripts directly like this, although this is not to say that any company that does this cannot be trusted.  However, with any unknown company you should always proceed with caution.  Do some research on the company.  Find out what else they have done.  Ask them questions.  Always register your script before sending it overseas.  And remember, if it sounds too good to be true, it is.  If in doubt, contact the Guild.

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Reality Show Idea Stolen

THE QUESTION: You did a verbal pitch for a reality show to a producer/network who turned it down but six months later you saw an advertisement for a show very much like the one you pitched!  What can you do?

OUR ANSWER: Sometimes producers and networks are genuinely working on similar ideas.  Reality shows are also often just a variation on a theme, meaning that although you think you’ve come up with something unique, your work is similar to something that’s gone before.  But copyright theft can and does happen.  If you want to sue the people involved you will need to prove that they stole your work.  Proving a case like this is difficult and expensive – you will need to show that you came up with this proposal and that they used your work without your permission.  If you feel you do have a good case contact the Guild for further advice.

Late Delivery Due to Illness

THE QUESTION: You were hired to write a script but got sick and missed the delivery date.  You delivered the work several days late and the producer is saying they won’t pay you.  Is that fair?

OUR ANSWER: What does your contract say about illness?  Usually if you are delivering work late, for whatever reason, you should contact the producer to let them know of the delay.  Most contracts will allow you to deliver work reasonably late due to illness.  If the contract stipulates no payment for late delivery then you will not be paid.  However, if you aren’t paid then the rights in that work do not pass to the producer meaning they can’t not pay you AND use the work, something you should make them aware of.

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Failure To Complete Work Due to Illness

THE QUESTION: The writing was going well but then you had a car accident which made working impossible for three months.  During that time the producer put another writer on the script and they’re so happy with the new writer they don’t want you back.  What can you do?

OUR ADVICE: Most contracts have provision for situations when the writer is unable to fulfil their obligations for long periods.  If you are incapacitated the contract will most likely say the producer can terminate the agreement.  Check the termination provisions.  If they say the producer can make alternate arrangements for completing the script (and it’s likely they will) then there is nothing you can do.

Just because you’re off the project doesn’t mean the producer has no obligations towards you – there may be payments on the first day of principal photography or profit shares to be made and if your work is used in the shooting script the requirement to pay those fees still stands.  If your work is used you also need to receive an appropriate credit.

Agent –  Payment for Contract Signed After You Terminated Agreement

THE QUESTION: You terminated your agency agreement and after that a producer bought your script.  The agent was the one who made the initial approach to the producer but you did most of the work to bring about that sale.  All the agent did was send the script to the producer – do you have to pay them the commission fee?

OUR ANSWER: Yes, if that’s what it says in the contract.  Most agency agreements state that the fee is payable on any payments made for work the agent had a part in, including where all they did was make the approach.

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Agent – Acting as Co-Producer

THE QUESTION: Your agent got you some writing work on a show but they are also acting as the co-producer on that same show.  Is that a problem?

OUR ANSWER: Yes.  The problem with agents taking other roles on productions is that as your agent it is their job to work in your best interests.  But what happens when your best interests collide with the best interests of the production?  For example, it’s in the best interests of the production to pay you as little as possible and in your best interests to receive as much money as possible.  How can the agent/co-producer fairly reconcile that dilemma?  Because of this inherent conflict we would recommend that agents do not have any interested roles in the projects involving their clients.

Agent – Literary Agent Claims They Can Represent Scriptwriters

THE QUESTION: You want an agent but there are very few operating in New Zealand.  A literary agent claims they will be able to represent you for your script based work.  Should you sign with them?

OUR ANSWER: Before signing with an agent you should always check to see what experience they have in the field you are interested in writing for.  Literary agents tend to represent prose writers.  Do they have experience in the area you are interested in working for – film, television, theatre, radio?  To properly represent you an agent should have specialist knowledge of the industry.  Ask them for references from other scriptwriters.  If they can’t provide them think carefully before signing up.  A literary agent will likely have experience in optioning book rights for adaptation in other media but beyond that you will need to check what knowledge they possess.

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Director Doing Rewrites – Control and Credit

THE QUESTION: The director hired to direct your script started rewriting scenes.  You don’t like the changes and also the director has mentioned getting a co-writing credit.  What can you do?

OUR ANSWER: The producer is the one who has ultimate control over the project.  What do they think of what the director is doing to the script?   It’s a hard fact that while filmmaking is a collaborative process, often that collaboration only goes one way (ie. while the director feels they can rewrite your script they would baulk at taking any direction ideas from the writer).  Credit is easily solved by reference to the Guild’s credit rules.

Purchase Price – When To Negotiate?

THE QUESTION: When should you negotiate the purchase price for your script, when signing the option or later?

OUR ANSWER: It’s good to negotiate both the purchase price and contract when negotiating the option.  That way both parties can work under some certainty.

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Using Film School Equipment to Make Film – Who Owns The Finished Work?

THE QUESTION: While you were a student at a film school you used the school’s equipment to make a film from your script as one of your projects for the course.  The school says that they now own all rights to the film.  Is that correct?

OUR ANSWER: Were the rights to this work ever discussed before you embarked on production?  Did you sign anything that granted the rights to the film school?  Even if you did it is unlikely that the film school can claim ‘ownership’ of the film – they have provided equipment but if you weren’t paid for the writing work then they don’t hold the rights to the script and they consequently cannot do anything with the film.  The situation is, at best, debatable and if challenged most schools would back down on any ownership matters, giving students the right to use the work.

If the school will not back down you should point out that your course fees pay for any use of equipment and materials and that the rights to the final work should remain justly with you.  A film school should be happy for you to use the work – if you become famous it is good advertising for their course!  Film schools may wish to use the work of students to promote their courses and this use can easily be negotiated.

Writer On Set – When Can You Attend Rehearsals and Filming?

THE QUESTION: You wrote the script and assumed that you’d also be involved with the filming.  You can automatically attend rehearsals and filming, can’t you?

OUR ADVICE: Not necessarily.  Unless your contract specifically says you can attend rehearsals and filming you must negotiate this with the producer.  Some producers and directors prefer the writer to be there during filming to help with rewrites simply because no one knows the script better than the writer.  It is always best to try to talk about and reach agreement on these issues right at the start when signing the contract.

Code by Michael Bao