For some reason I’ve never been able to fathom, I receive a lot of mails asking me for advice about contracts, both publishing and screen.
Now to be clear, whilst I have done a lot of deals during my time (I’ve never been able to find an agent to do the dirty work for me), I am certainly no expert in this field and should not be considered as such. In fact, what knowledge I have accrued is generally a result of my own mistakes and trust me, I have made some corkers over the years. However, as someone who’s always happy to help if I can (and as long as you don’t hold me accountable in any way should you choose to follow my advice and it all goes wrong) here are my top 10 tips. Take ’em or leave ’em.
1. Arguing with editors or producers over terms can cause some serious rifts in a working relationship which is obviously best avoided. Therefore, if you have an agent you should leave everything to do with the business side of your work to them. And I mean everything.
It stands to reason that their job is to get you a great deal because whilst they might be fabulous people who you adore with a passion, the stark reality is that the more you earn, the more they earn. So if they are happy with the deal they put in front of you, you certainly should be.
2. If you don’t have an agent, then you are in a weakened position because the people you are negotiating with will inevitably assume that you are either naive and/or desperate which gives them the upper hand. Therefore, you should write the following three words down and stick them somewhere that places them in your eye line at all times: TRUST NO ONE.
Believe me, no matter what anyone else might tell you, when it comes to deals there is only one person who has your best interests at heart and if you don’t have an agent, that person is you.
Remember, it’s not personal, it’s business. The film BUSINESS, the publishing BUSINESS. As such, everyone you negotiate with might well come across as your best mate but the truth is that they are desperate to give you as little as possible or better still, strike a deal which means they don’t actually have to give you anything at all. This is because the less they give you, the more they keep for themselves or their employer. So read everything as many times as you have to and question anything you are unsure of. When it comes to contracts, there is no such thing as a stupid question, there are however, plenty of stupid writers who didn’t ask the questions they should have.
3. It’s human nature to avoid asking for what we think we are worth and since most negotiators know this, their first words will be ‘so what do you want?’ thus putting you on the back foot from the off. Therefore to avoid this, it is vital that before a deal is even discussed, you take the time to work out what you have and how much it will take to get it from you.
Remember, everything has a value be it your finished manuscript, your experience, your time, your backlist or even ‘From the writer of Green Street’. So be professional, quantify everything and before you start talking, work out both a starting point and a bottom line. Because pound to a pinch of poo, the person asking you the question you will have.
4. Publishing royalties should be on a sliding scale. For example, 7.5% for the first 10 thousand sales, 10% for the following 40 thousand and anything over 50 thousand should earn you 12.5%. All publishers will baulk at that but the reality is that most novels won’t get anywhere near sales of 10 thousand anyway so what have they got to lose?
Similarly, with movie contracts you should throw in a clause which means that if a movie makes over X amount (enter some crazy amount) your percentage increases significantly. Again, the studio will baulk but if it’s a huge success, everyone will be a winner and that should certainly include you.
5. Unless you are knowingly going into an agreement for a film which is designed to kick-start a career or you are willing to work on some kind of profit share, a contract for a screenplay with a production company should always include a fee on signature for one very specific reason; commitment.
If someone is prepared to put their money where their mouth is, it’s fairly obvious that they will be a lot more enthusiastic about taking your script through to the day the camera’s roll than someone who has nothing invested save a couple of lunches (if you’re lucky). Indeed, if someone is asking you to sign something but are not prepared to invest in you, you should be asking them (or yourself) why they aren’t.
The remainder of the total fee will be staggered anyway so make sure you know what will be due to you, and when.
6. Unless a major star or studio is involved, back-end payments are generally worthless so take whatever is offered with a pinch of salt and laugh at any offers of increased back-end payments in lieu of a smaller front end fee. This is generally a simple tactic to save money so you should always squeeze every penny you can from the front end.
However, always make sure that a back-end payment is included just in case it’s a smash and the creative accountants can’t cover it up.
7. Watch the clauses. You want invites to premieres, involvement in promotions (at their expense), a cut of any soundtrack profits and if there’s a sequel, you want to be the one to write it. If not, you want a slice of the action including payment for the use of any characters you have created in any and all spin-off projects.
If there’s a chance of a novelisation, you want to be the person to write it but if you don’t, you want a cut of any profits, etc, etc.
If it’s for a book, you want details of the marketing publicity budget as well as an approximate publication date if at all possible.
Seriously, if you don’t ask, you don’t get.
8. If the deal is for a screenplay, always ensure that there is a clause in the contract whereby if the film isn’t made, the rights to your work revert to you (for free) after a reasonable period. That way, if nothing comes of it, you will at least have a script you can try to sell somewhere else.
I mention that purely because I was once commissioned to write a script for someone and whilst it was a great script, it never got made because the company imploded (nothing to do with me). However, since I didn’t have the above clause in my contract, the rights continue to be held by the now dormant company and despite repeated offers, they have refused to sell them back to me.
9. Always, always, always get everything read by either a lawyer, the Writers Guild or the Society of Authors before you sign it. That’s what they are there for so use them.
If a lawyer comes back with some concerns about a contract, act on their advice and fight your corner. Producers are used to brinkmanship so take them all the way and always be prepared to walk away if need be.
You might well come under pressure to avoid this step and just sign on trust or good faith and this will come in many forms from threats that the financiers are about to pull out if you don’t sign through to female directors sobbing on the phone in the middle of the night. You should treat all such tactics as bullshit.
If someone doesn’t want a lawyer to see a contract they’ve put in front of you it’s almost certainly because they have something to hide (see point 2 above). Therefore, resist this pressure, stay cool and make them wait until you are ready to sign on the line. It’s your time, your money and your future income.
10. Believe me, signing a dodgy deal is an awful experience so only sign on the line when you are sure that it’s as good as it can be for all sides, but especially you!
And finally, always trust your gut because if something feels wrong, it usually is.
Dougie Brimson has written three award-winning feature films (Green Street, Top Dog and We Still Kill The Old Way) and is the author of 16 books including the best-selling Billy Evans gangland trilogy. His latest thriller, In The Know, was published by Caffeine Knights in May 2020.
His next novel will be his first military thriller and will be published in Spring 2021.
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