14 may. 2018

Cómo negociar un contrato de guion sin tener representación

Para no ponernos así de furiosos...
By Ken Miyamoto

It’s a myth that you always need an agent, manager, and entertainment lawyer to broker a screenwriting deal — but with that statement comes a necessary context to be applied. If you fall within that certain context you’ll see that you surely can — and often need to — negotiate your own deal without representation.

Perspective and Context

First and foremost, you do need at least an entertainment lawyer — preferably along with an agent — to negotiate a contract with any major studio or major production company, with very few exceptions. The legalities involved on their end are serious business, especially due to the fact that they are WGA (Writers Guild of America) signatory companies that have to abide by the latest agreements.

Here’s the interesting thing to consider though: Many professional screenwriters out there — those making at least some money screenwriting — don’t write directly for major studios and major production companies. Many are working for independent producers, smaller production companies, and smaller distributors.

The top one-percenters are those writing the big movies on assignment, making continual six to seven figures per contract. While that is the highest of highs to strive for, it’s certainly not the reality for most screenwriters. In fact, it’s certainly not the reality for a majority of WGA members either.

Hollywood screenwriter John August (Go, Charlie’s Angels, Big Fish, Charlie and the Chocolate Factory, Corpse Bride) stated on his blog, “There’s no guarantee you’ll have a second writing job. I haven’t seen numbers, but my hunch is that a substantial portion of new WGA members aren’t getting paid as screenwriters two years later.”

For independent films, Direct-to-DVD/Blu-ray/Streaming movies, and other projects outside the realm of major studios and major production companies, contract negotiations are like the Wild West where almost anything goes.

Before we move on — and before you all cry foul about the concept of negotiating without representation — know that I’ve successfully negotiated deals and assignments that have garnered me notable money, one of which was produced with a name cast that found itself at the top of the iTunes charts somehow (it’s not that great). And I did so without a manager, agent, or entertainment lawyer.

Before we move on to how you can negotiate your own contracts, we have to look at the two markets you’ll be doing so within.


The Wild West of the Film Industry

We read about the deals and goings on of screenwriters, representation signings, producers, and production companies in the trades. Despite the fact that the trades write about such deals each and every week, there are double or triple the amount of deals happening on the fringe of the film industry that are never reported.

Non-WGA signatory production companies in the United States and abroad are hiring screenwriters left and right. When you go to any streaming channel and see the endless stream of B action, comedy, drama, and horror movies, you’ll get an idea of how many projects are truly being made just outside of the Hollywood system — and outside of the WGA’s reach.

The types of movies within this Wild West platform — most of which star B, C, and D list actors — are being produced under budgets that range from $1 million to sometimes upwards of high tens of millions of dollars, depending on who is attached to star and what foreign territories are pre-sold. That’s how stars like Nic Cage, Jean Claude Van Damme, and even Steven Seagal are still making profitable movies today.


The Indie Market

Independent films began to take on a whole new meaning — with much more grandeur — when the 1990s indie boom hit. The indie market has become the direct secondary market to Hollywood. It has created a shift in how films are being made, which gave birth to the aforementioned Wild West platform as well.

The major studios are no longer behind a majority of movies being made. They handle the franchises, the tent poles, the blockbusters, and the high brow biopics and epic true stories. The films beyond those? The indie market develops and produces them, either in partnership with studios or through acquisitions made by the studios after the films have been developed or made.

Indie films star unknown actors or are used as Oscar bait prospects for bigger stars.

The budget range can be as low as $7,000 and as high as tens of millions of dollars as well.

Prime examples for the lower end of that spectrum are indie hits like Primer, which was made for just $7,000 and Paranormal Activity, which was produced for just $15,000. The first only garnered $420,000 at the box office, but became a huge cult hit. The second created a $400 million franchise. And those are the top one percent success stories.

Most film festival hits — and later Oscar contenders — are often indie projects later acquired by studios for distribution. They are financed independently, whether it’s for ten thousand, a hundred thousand, a couple million, or twenty million.


Can You Really Negotiate On Your Own?

If you can get an agent or entertainment lawyer, go for it. That’s the best case scenario. But sadly, that best case scenario encompasses only a minority of the actual screenwriters in the world — especially these days.

It’s hard to get representation.

Managers are easier to attain, but they don’t necessarily handle negotiations like an agent or entertainment lawyer can.

So more often than not, most screenwriters in the world — even those managing to make at least some money — have to go at it alone.

Most cynics will say, “Screenwriters in the Wild West platform and indie markets only write for no money.”

It’s just not true — unless you let yourself be taken advantage of.

The key element to negotiating your own contract is to do everything you can to get everything you can.

While you can certainly handle things on your own, you do need to make sure that you’re dealing with reputable companies and individuals. In my deals, I’ve never been taken advantage of in any, way, shape, or form. You have to be able to smell a scam a mile away.

Most reputable companies in this context will have all of the necessary contracts. They’ll have their own lawyers draft those contracts that are particular to your negotiated deal. And in the case of smaller indie films that don’t have such representation, you just have to be smart and choose who you work with wisely.


Don’t Work For Free… When You Can Help It

It’s tempting. You’ve struggled for so long and now someone either wants you to write the script for a film they are going to produce or they want to produce your script that they’ve stumbled upon. These people are often close friends, peers, or acquaintances. Sometimes your networking at film festivals will pair you with that special filmmaker or indie producer that gets what you are writing.

They want to produce your script — assignment or not. They have the means to do it, whether it’s $10,000 or $300,000. Or maybe even more.

They’ll always say that the budget is tight — and it usually is. However, that in no way, shape, or form means that you can’t get paid. It’s tempting to just give in to see something you wrote be produced. It’s very tempting. And make no mistake, those friends, peers, and new found “besties” will likely ask you to write for free in return for onscreen credits. They’ll even more likely assume that you’ll do so without having to even discuss it.

Stop. You deserve something. Just like the sound guy deserves their fee, or the DP, or the grip, or the cast. Don’t sell yourself short just to see your name on a screen.

So how do you go about doing that? What are you worth?


For Bigger Indie Budgets, Use the WGA Low Budget Minimums

The Writers Guild offers a Low Budget Agreement for narrative theatrical films. These contract guidelines are designed to meet the demands of the low budget film industry and ensure rights and benefits for writers of films budgeted at $1.2 million or below.

If you’re a guild member, you can work under these low budget minimums to find work that is more likely to actually get produced. If you’re not a member of the guild, you can use these guidelines as a barometer for your own negotiations with those smaller producers and production companies.

The Writers Guild Low Budget Feature minimum for any budget under $200,000 is $12,205. The minimum film budget to qualify is $48,819.

So the minimum screenwriter compensation for a film under $200,000 is 25% of the normal guild minimum for an original screenplay, according to the normal WGA Minimums Agreement — $72,662. For a non-original screenplay, the guild minimum is $63,581. Your barometer in these cases is 25% of those numbers, depending on the circumstance.

As the budgets rise above $200,000, but still below $500,000, the share increases to 50% of the minimum, which amounts to $24,410.

Here is a screenshot from the WGA Low Budget Agreement.

So as you can see, the WGA Low Budget Agreement offers you something to point to, in terms of communicating proven barometers to the producer you are negotiating with.

When you present them with this information, it’s the clear starting point where you can gauge where they are at and how tight their budget really is. You may not get the $12,205 for that $200,000-budgeted film, but you’ll have raised the bar for negotiation.

But what if they can’t afford to give you that much? What’s the next option?
For Lower Indie Budgets or Productions with Budget Constraints

Filmmaking is hard. It costs a lot of money to make an average film look average, let alone great. Equipment rental costs, individual crew member costs, transportation costs, talent costs, insurance costs, etc.

Some productions don’t have the room to pay five figures for a screenwriter. This is especially true with smaller independent productions.

But that doesn’t mean you should be working for free.

The next barometer to follow is the 2% Rule.

The 2% Rule is a term I just created for this article, but it is based on the general consensus that screenwriters should be paid between 2% and 5% of the film budget. For smaller indie productions that have budget constraints, it’s best to aim low. 2% is the way to go.

So if you are attached to an indie film that has a micro-budget of $10,000, you can easily ask for at least $200. Since that is a pretty low figure, you can also consider negotiating up to 5% to make $500.

A check is a check.

If they’ve managed to scrounge $100,000 for a feature indie, that’s at least a solid $2,000 for you.

You can certainly do the rest of the math for any given budget.

When you pitch them a certain benchmark, not only do you sound professional and in-the-know, but you’re also giving them a realistic formula to work with.

But what if you’re both early in the process and the money hasn’t been raised yet?


Early Bird Contracts

Sometimes you don’t know what the budget is going to be before you start working on the script or maybe the filmmaker is taking a script you’ve already written and pitching it to investors or crowdfunding it.

A contract and deal has to be made as early in the process as possible, otherwise, you lose some leverage.

Ask the filmmaker or producer what type of budget they are shooting for. You may likely hear a response, “Whatever we can get.” If you hear that response, the project doesn’t have that much weight.

If you’ve managed to partner with a filmmaker or producer that knows what they are doing, they’ll likely have a Plan A and Plan B.

Plan A might be them trying to get investors to pony up $100,000. Plan B might be them paying for the movie out of their own pocket (credit card) for $10,000.

The secret to getting paid under this uncertainty is to write two levels of compensation within the contract. The contract would literally stipulate that if the budget is $10,000, you’ll get your $200 — if the budget is $100,000, you’ll get your $2,000. Yes, you have to partner with someone that you trust and there must be some transparency on their end as far as the funds coming in, but this allows you the ability to take care of yourself in both situations.


… Or Take What They Offer and Run

My first big assignment offered a five-figure contract before negotiations even started. There was some back and forth to be sure, but the offer was pretty damn good from the get-go — at least with the context of where I was in my career at the time.

You always want to avoid over-negotiating. That’s something to be left for professionals that know what they are doing — agents and entertainment lawyers.

Use these above barometers, but always be ready and willing to accept a good deal. Sometimes you’re not worth what you think you’re worth in any given scenario, but you always need to be aware that you’re worth something. You are. You’re the screenwriter. There is no film without the words you write, the characters you conjure, and the worlds you create.

Negotiating your own terms and contracts is often a rite of passage as you work your way up that totem pole. The best case scenarios have screenwriters acquiring managers that can connect them with agents and entertainment lawyers when a deal is present, but that’s sadly not always the case.

Use these guidelines if you’re not dealing with WGA signatory companies and are just trying to get a solid paid writing gig. When you move up the ladder and start dealing with major studios and major production companies, that’s when those agents and entertainment lawyers will really come into play.

Lastly, if you suddenly find yourself with an offer from the majors, but don’t have representation, they’ll usually direct you to a solid agent and entertainment lawyer that they’ve dealt with before.

Until then, you’re on your own — so be ready.

screencraft.org
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