NZWG Model Contracts
Introduction
How a writer is engaged on a project is determined by the contract agreed between the parties. NZWG provides various model agreements and contract materials – these are available free of charge to members.
Please click on the relevant link below to download a copy of the following NZWG model contracts (all available in Word format).
Guidelines for Using the NZWG Model Contracts
This downloadable booklet is intended as an informative guide to the New Zealand Writers Guild (NZWG) model contracts that have been negotiated between the NZWG and the Screen Production and Development Association (SPADA) in 2001. These model agreements include an Option Agreement, a Purchase Agreement and a Screenwriters Agreement.
The intention behind the model agreements is to provide a starting point from which agreements between Writers and Producers can be negotiated. As with all contracts, modifications will need to be made so as to reflect individual circumstances and the outcome of the arrangements negotiated by the parties.
As a guide, this booklet should be read in conjunction with the respective model agreements themselves. If you have any general queries with respect to any parts of these model agreements then you should address these to the NZWG or to SPADA to see if they can assist you. More pertinently, if those queries concern matters of a legal or a sensitive commercial nature you should address them to your legal adviser.
When using these model agreements, the following things should be remembered:
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they have been prepared from the perspective they will be employed for use in a feature film project (they could however be adapted to cover other formats such as short film, telemovies or single television drama);
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they are intended as an informative starting point from where arrangements between the parties can be negotiated and agreed;
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both parties should always seek independent legal advice before negotiating and finalising such agreements;
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neither the NZWG nor SPADA will accept any liability or costs which a party may allege they have suffered through the use of these agreements.
Please click on the link below to download a copy of the following Guidelines booklet.
General Contract Information
What is a Contract?
A contract is a legally enforceable agreement made between individuals or entities. For a contract to exist there needs to be three distinct features:
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An offer (including, but not limited to, remuneration, delivery schedule, working expectations, rights)
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Acceptance of the offer
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Consideration (payment) of the offer
Do All Contracts Have To Be In Writing?
Yes. A verbal agreement isn’t a binding agreement, it doesn’t complete any Chain of Title requirements. Your contract is your safety net in any working relationship, having full details (including rights, credits and fees) in agreements can help resolve disputes if they arise.
Formal agreements come in many forms, they all need to include the following points (plus any other additional information that is relevant to the specific project).
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Accurate, detailed information of the offer. Including, but not limited to, remuneration, delivery schedule, working expectations, rights, credits and warranties.
Written and signed agreements ensure all parties understand the importance of the deal and their commitments. Protect yourself and your works by taking the time to read and consider all the implications in the presented contract. This will help avoid problems later.
Enforceability
Contracts that accurately include the offer, acceptance and consideration, which is written and agreed to by all parties are enforceable.
Situations, that might affect the enforceability of a contract, can include:
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The lack of capacity of one of the parties to make the contract (e.g. where a contract is made with a child or a person who was mentally incapacitated).
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When a genuine mistake is made about the nature of the contract.
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Where a party to the contract had made a false representation that induced the contract.
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Where one party unjustly forced the other to enter into the contract – duress, undue influence.
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Impossibility of performance (eg. you hire someone to paint your house and it burns down).
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Unconscionability – where something literally ‘shocks the court’ - e .g. selling thousands of dollars of dance lessons to an invalid 95 year old.
Typical Contractual Terms
Party/Parties – the people entering into the agreement. You can contract yourself, as long as you are two legal entities (e.g. a producer and a production company).
Term/Duration/Timeframe – how long the contract lasts.
Clause/Provision/Paragraph/Term – the paragraphs that explain the deal in the contract. They also includes definitions of words used in the contract, a description of what both sides intend to do in the contract.
Dispute Provisions – clauses that determine how problems will be dealt with.
Amendment/Addendum – something added to the contract after you’ve signed. It only has effect if both parties agree to it.
Disputes
Disputes are often solved through mediation (the parties discuss the problem with a mediator and come up with an agreed solution), arbitration (the parties submit their problems to an arbiter who makes a decision) or by a court (the parties argue their case in front of a judge).
Any decision on breaches will depend on the nature of the disagreement and the remedies sought. For example, the wronged party may be paid compensation for the loss suffered or the defaulting party may be ordered to complete their obligations under the agreement.
Common Sense Advice About Contracts
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Read the contract, all of the contract.
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Do not sign the contract if you don’t understand the contract. If you don’t understand any terms ask the other party, your lawyer or NZWG what they mean. NZWG members are entitled to contract advice and negotiation.
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Don’t rush to sign because you are under pressure from the other side/are getting ‘the deal of a lifetime’/are going to miss out on the job if you don’t sign on the spot. You are entitled to seek independent advice on any contract or agreement that is presented to you.
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Always fill in the blanks where there are blanks on form agreements or cross out at least all but one of either/or clauses.
Negotiating Contracts
NZWG explains some of the basics of making a deal.
Negotiating Contracts Negotiation is a skill that can be learned.
Be Brave, Know the Value of your Work
In an industry such as ours, where work is often scarce, writers may be reluctant to negotiate. Writers may feel they should just accept the contract and rates they are presented with lest they appear ‘difficult’ or ‘ungrateful’. All writers have the right to negotiate a fair deal for the value of their work.
Be Flexible
The easiest way to fail at negotiation is to have a traditionalist win-lose mentality (I win, you lose). Modern negotiation is based more around the win-win model. It is not always possible for both sides to ‘win’ all the advantages they want in a negotiation but both should feel largely comfortable with the outcome. Any writer should have a bottom line, something they’re not prepared to go below, but equally no writer should adhere to an unrealistic expectation.
Understand the Economic Realities of the Industry
The most common complaint NZWG hears from producers is that writers don’t understand the economic realities of the local industry. These realities shift from production to production – a low-budget short film is produced on a different scale from a one hour drama series. Learn what is an achievable rate or conditions for the type of production you are working on.
Know Your Value
Many writers seriously undervalue themselves. Good writers know that their services are worth more than the average because of the skills they bring to a job. If you are bringing experience, skill or specialist knowledge to a production then that deserves to be appropriately rewarded. Knowing your value also includes understanding what your bottom line is and being prepared to say or refuse low paying work if necessary.
Be Clear
Clarity is vital in a successful negotiation. If one party doesn’t understand your request how can they grant it? Understand exactly what you want and be prepared to accurately communicate that to the other party. Putting any requests in writing is a good way to help form your thoughts.
Trade Off Concessions for Demands
Good bargaining is about give and take. Ensure that you prioritise your wish list. What things are most important to you? Trade off your lesser wants for things that are most important to you.
Get an Agent/Lawyer
The easiest way to negotiate is to have someone else to do it for you. Writers may engage an agent or lawyer to negotiate the deal for them. There are very few agents in New Zealand and most writers will not be able to afford a lawyer. But if there is an opportunity to engage an agent, even if it is just to negotiate a single contract, writers should consider the benefits. The main advantage here is that the writer is not forced to discuss business with the producer, leaving them free to concentrate on creative issues. Also agents and lawyers are typically experienced in negotiation and it is always easier to negotiate on someone else’s behalf than it is for oneself.
Upskill Yourself on Negotiation
There is an entire industry devoted to helping people improve negotiation skills. But a good place to start is with a basic primer on the subject like Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher, William L Ury and Bruce Patton.
General Information on Conditions
Conditions and Contracts
How a writer is engaged on a project is typically determined by a contract. Contracts (see above for further information) should always be in writing and set down the relationship between the parties. The detail of this relationship is known as the ‘conditions’ of work.
In New Zealand, unlike other screen industries, there are no minimum agreements to provide a bottom line of rates and conditions for engaging writers. The Employment Relations Act, which enables unions to bargain with employers, does not cover contractors and most writers in New Zealand work as contractors. Because of this it is vital that writers ensure their contracts are comprehensive and sufficiently administer the relationship between them and the producer.
Employee Or A Contractor?
The New Zealand screen industry is based almost exclusively around the ‘contractor’ model. A ‘contractor’ is a self-employed individual who is engaged on a contract for service as opposed to an ‘employee’ who works for an employer on a contract of service.
Because of the way they work most self-employed writers will be contractors. However, a writer who is engaged on a long-term contract by a single employer may legally be an employee.
Why Does My Status Matter?
It’s important to be aware of the difference because it affects your liability for tax, GST and ACC. As an employee you have certain rights to pay, conditions of work and holidays not available to contractors. As a contractor you have the ability to claim certain amounts as tax deductibles.
Are There Tests To Determine My Status?
There are no official ‘tests’ that will help a writer determine whether they are a contractor or employee but the IRD provides a useful set of guidelines (from their IR336 publication). These are similar to guidelines used by accountants and lawyers.
If I’m An Employee Will I Lose The Tax Benefits I Have As A Contractor?
You will lose the ability to claim certain things as tax deductibles. However, you will gain the advantages of being an employee including rights to statutory holidays, redundancy and leave such as parental leave, bereavement leave and sick leave. If you belong to a union you can also collectively bargain alongside other employees for better pay and conditions of work something you could not do as a contractor.
Advice for Employees
Employment relationships are complex and cover a wide range of issues.
NZWG provides advice to members on specific employment matters.
Very good, free information and advice on general employment matters can be found at the Employment Relations Service The site contains information for both employees and employers.
Advice for Contractors
Most writers working in the New Zealand industry work as contractors. Because of the nature of the contracting relationship it is necessarily a looser and more fluid arrangement than that of the employee-employer relationship.
NZWG provides advice to members on specific matters relating to contractors.