Question about deferred payment

Question

Don't say "Don't do it".I know everyone says "Don't do it", "It's the oldest trick in the book", etc etc.But if say someone (ie. me) were to do it, what would you ask for?Please don't simply reply saying "you shouldn't do it because if they can't afford to pay you then they probably won't at the end" - I know of all the scare stories.Do you know of a case, either personally or in the press, of a deferred payment actually paying off? I'm not talking about actors - I'm aware of when Anthony Quinn's agent, for example, decided he would be paid in advance a sum instead of getting a deferred payment of the profits from "La Scala", which proved to be a highly costly decision.Just want to know whether you know it working with any writers..But more importantly, which of these should one demand in a contract?I want X(?)% of all profits (how much?)orI want XX cash from the profits (assuming there are any) (which?)I want full remake rights and translation rights into other languages in other countries and to keep copyright?I want to be involved with all rewrites?Only person on writers' credit - even if a script editor becomes involved?X copies of DVD?Right to show DVD in a screening?Accreditation to any festivals it's shown at?what else?PS please, no comments about how it "shouldn't be done", it's a con, etc etc.. I know all that already, I've been on MWS for long enough to read all the negative comments about such transactions. I want to know what you would demand *if* you were to go with it, hypothetically speaking.

Usenet · Accepted Answer

[nq:1]Don't say "Don't do it". I know everyone says "Don't do it", "It's the oldest trick in the book", etc ... about such transactions. I want to know what you would demand *if* you were to go with it, hypothetically speaking.[/nq]
I wouldn't say never do it. There are times when it makes sense.

But I would ask, "Are you negotiating your own deal?" Seems like it.

Any way you can get someone experienced to do the negotiation for you? There are a lot of technicalities involved and a lot of traps that you may not want to find yourself in.

Cinema is the most beautiful fraud in the world.
Jean-Luc Godard

Usenet · Answer

[nq:1]Don't say "Don't do it". I know everyone says "Don't do it", "It's the oldest trick in the book", etc ... which proved to be a highly costly decision. Just want to know whether you know it working with any writers..[/nq]
Check out Rick Schmidt's "Feature Film Making At Used Car Prices". He sets up deferred payment schedules with his artists; you might find it informative to hear the logic from the director/producer's point of view.

Alan Brooks

A with an Underwood
Gladly Pay You On Tuesday Productions
MWSM FAQ: http://www.panix.com/~mwsm/faq.html
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Usenet · Answer

[nq:1]But more importantly, which of these should one demand in a contract? I want X(?)% of all profits (how much?) ... X copies of DVD? Right to show DVD in a screening? Accreditation to any festivals it's shown at? what else?[/nq]
There's a difference between deferred payment and a percentage of the profits. You should be asking for both.
Deferred payment comes BEFORE profits. A deferred payment is something you get as soon as the original investors have made back their money and recoupment (a percentage of their investment - usually between 4%-8%, which they get paid first). Profit sharing only happens after everyone has seen their deferred payment.
Of course neither deferred payment nor profitsharing is enforceable unless you negotiate a right to audit their books.

Negotiating a sole credit is, IMO, bad form. If another writer contributes significantly, they should be credited. You should ask for credit to be determined as if the WGA credit guidelines were in place.

You should have an entertainment lawyer negotiate your contract for you.

-Ron

Usenet · Answer

[nq:1]Don't say "Don't do it". I know everyone says "Don't do it", "It's the oldest trick in the book", etc ... But more importantly, which of these should one demand in a contract? I want X(?)% of all profits (how much?)[/nq]
Traditionally, any negotiation for net profits which would be defined by them, amounts to a percentage of nothing. These aren't called "monkey points" for nothing.
And it is vanishingly unlikely that they would give you a percentage of the gross.
[nq:1]or I want XXXXX cash from the profits (assuming there are any) (which?)[/nq]
Profits are what they start earning when everybody who is owed money on the project (like you) has been paid.
Investors, as a rule, get paid first (if at all). When they get their money, where the next dollar goes is a matter of negotiation.

Does everybody who's agreed to defer get paid from that first clear dollar, or do some deferred people get their money first and then they have to be paid off before the next in line gets a share?
[nq:1]I want full remake rights and translation rights into other languages in other countries and to keep copyright?[/nq]
Unachievable. You might negotiate the "right to first refusal" on a rewrite but there's no way that you would be able to keep remake rights or copyright, or any other rights unless by some odd chance, this is based on a published work of yours.
[nq:1]I want to be involved with all rewrites?[/nq]
Likewise, unachievable. What if the work that you submit is unacceptable to them? What if they bring in a director or a star who wants to do things that you don't want to do?
What happens is they fire you and bring in another writer. They're certainly not going to say to a star, whose attachment will make the movie happen sorry, the writer doesn't want to execute your changes, so see you later.
No. They say, "see you later" to you.
[nq:1]Only person on writers' credit - even if a script editor becomes involved?[/nq]
Likewise unachievable. If they fire you and somebody else comes in and essentially throws out your script why should you get sole credit?

Generally, on deals like this, the contract specifies that credit will be assigned in accordance with WGA policies on this subject but even then, if it were a WGA shoot and you didn't agree with what they were doing, you could go to the WGA for credit arbitration.

What would your remedy be here? Nothing.
[nq:1]X copies of DVD?[/nq]
That, they might agree to do, depending on how many you want.
[nq:1]Right to show DVD in a screening?[/nq]
Not to you. They are the makers of the movie. They are the owners of the copyright both of script and finished film.

It's their right to enter the movie in a given festival or not.
[nq:1]Accreditation to any festivals it's shown at?[/nq]
Falls under the rubric of WGA credit rules but if they don't what are you going to do?
[nq:1]what else?[/nq]
What is negotiable is money. How much you get paid. When you get paid. In what order you get paid.
But since that would all happen probably years after you'd written your last sentence and gone on your way, you would need to be able to audit their books to confirm that, in fact, they do or do not owe you money and how much.
Some writers will negotiate not a percentage of the profits, but a certain number of bonuses keyed to box office returns (generally as reported in Variety). So if, by some odd chance, the movie were to hit big and make fifty or a hundred million dollars, then you'd be entitled to bonus checks at certain box office landmarks.
But those would be bonuses above and beyond what they would be obliged to pay you for the writing of the movie.
[nq:1]PS please, no comments about how it "shouldn't be done", it's a con, etc etc..... I know all that ... about such transactions. I want to know what you would demand *if* you were to go with it, hypothetically speaking.[/nq]
Hypothetically, it would be an exercise in imagination, because working deferred is like lending money to your dead beat brother-in-law. If you ever see a penny of it back, praise *** and take the money but never go into such an enterprise ever expecting to see the money.

Also, others have already suggested to you that you get an entertainment lawyer to negotiate the contract.
You should and, of course, that will cost you money, but at least somebody would be representing you who would be in a position to know just how badly you were being ripped off and whether the chances of seeing a dime were infinitesimal or merely extraordinarily unlikely.
As I've mentioned to others, if paying for an entertainment lawyer is beyond your means, you should check to see whether there is a "Volunteer Counsel for the Arts" in your particular state. These organizations consist of lawyers who provide legal services to members of the Arts community for little or no money.
NMS

Usenet · Answer

[nq:1]Don't say "Don't do it".[/nq]
Okay, I won't. In fact, sometimes it's worth doing, just to get a produced credit. But you need to remember that, in practical terms, it means you're writing the script (or selling the existing script) for nothing but the honor of having it produced.
What I'd ask for, if it were me, would be a flat fee - no percentage, no points, no schedule. Just $X (which should generally amount to 2% - 5% of the total production budget) to be paid out of...
Well, therin lies the rub. Out of what? There are DTV companies out there that pay a film maker a flat fee - they just buy out the film like a retail sale. You come to them with a finished product, all your ducks in a row in terms of paperwork, and they hand you $X in exchange for the master tape and all rights, everywhere, in perpetuity. If you're looking at writing a script for a producer/production company that's talking in terms of deferred payment for the writer and you're asking how many copies of the DVD you should demand, there's a pretty good chance that - assuming the finished product gets distribution at all - it's going to go to one of these kinds of distributors.

If you're writing (say) a horror script for a guy who's going to produce it for $10K on video and try to sell it to Vista Street*, you should be getting around $200 - $500 for your efforts. Trouble is, Vista Street might only be willing to pay the guy $3K for the finished product, and there might not be anyone else who's interested in distributing it at all. He loses a quick $7K on the whole enterprise but has a feature film in commercial release.

You lose maybe $500 on the deal and get the same result.
[nq:1]Do you know of a case, either personally or in the press, of a deferred payment actually paying off?[/nq]
Personally - never heard of it.
[nq:1]I want full remake rights and translation rights into other languages in other countries and to keep copyright?[/nq]
Never gonna happen, because the company that buys the finished product will likely do so only on the producer's signature that he/she owns the film and underlying material in its entirety. You retaining rights makes that impossible, so the distributor doesn't pick it up, and no one - including you - gets paid.
[nq:1]I want to be involved with all rewrites?[/nq]
You can ask, or even volunteer, but even the WGA can't get that one for its members.
[nq:1]Only person on writers' credit - even if a script editor becomes involved?[/nq]
You can ask, but it's unlikely and it's also possible that such a thing could come back to haunt you. Case in point - I wrote a film that was heavily rewritten by the producers/directors (a pair of Russian brothers, AFAIK) and that now bears little resemblence to my original. They left my name on it but also added their own, for which I'm grateful. I'd hate to have people see that film** and think that I was solely responsible for the script.
[nq:1]X copies of DVD?[/nq]
That's a worthwhile request, given the circumstances that probably surround your deal. You might ask for a dozen, or even two dozen. A gross of 'em will seem like you plan on selling them, but it'd be worth having a few to give out as samples, to family and friends, etc.
[nq:1]Right to show DVD in a screening?[/nq]
What kind of screening? If it's a festival, the producers/distributors will mostly be in charge of that. If you want to be more aggressive about entering than they are, it's going to be a case-by-case thing. If you're talking about a premiere or some kind of private screening then you're going to need to specify exactly what - in writing - in advance, which seems unlikely.
[nq:1]Accreditation to any festivals it's shown at?[/nq]
I'm not sure what you mean by that. Credits at a festival are going to be the same as the credits on the film, generally speaking.

Life Continues, Despite
Evidence to the Contrary
Steven
*I don't know if Vista Street is even still in business. **No one will ever see it, but still.

Usenet · Answer

[nq:1]I'm not talking about actors - I'm aware of when Anthony Quinn's agent, for example, decided he would be paid in advance a sum instead of getting a deferred payment of the profits from "La Scala", which proved to be a highly costly decision.[/nq]
"La Strada," I think, is what you're looking for.

Stephen Mack
"Nobody's smart enough to be wrong all the time." -Ken Wilber

Usenet · Answer

Thanks for all the advice..
[nq:1]As I've mentioned to others, if paying for an entertainment lawyer is beyond your means, you should check to see whether there is a "Volunteer Counsel for the Arts" in your particular state. These organizations consist of lawyers who provide legal services to members[/nq]
I'm in the UK... any UK people here "in the know"???

Usenet · Answer

[nq:2]I'm not talking about actors - I'm aware of when ... "La Scala", which proved to be a highly costly decision.[/nq]
[nq:1]"La Strada," I think, is what you're looking for.[/nq]
It was indeed.. I was heavily under the influence of alcohol :-)

Usenet · Answer

Thanks (to all of you) for the advice. Jeez scriptwriters get a *** deal don't we? ;-)

Usenet · Answer

Butter those *** cheeks up! I'm coming home! !

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