The bleeding edge of screenwriting and media convergence

December 1996-January 1997

by Terry Borst & Deborah Todd

filed 11 November 96 Copyright ©1996 alt.screenwriters

Terry and Debe’s Official “Back-End” Dealmaking Checklist!

Yours to post, free!

(Though cash donations and personal checks will be accepted and are indeed encouraged.)

Profit participation
Terry: If it’s a feature I can at least look towards net points (more popularly known as nyet points); if it’s a TV episode I’ll at least see residuals. But there are no box office grosses in new media, no re-runs. So how’m I going to get something when the Interactive project I’ve written sees a profit?
Deborah: Because this is still such a new industry, the typical “back-end” deal structure doesn’t exist. One of the more popular models, however, comes to us from the publishing industry: advance against royalties. The writer/designer can expect payment up front in installments (the advance), with some back-end based on a percentage of sales. If the publisher balks at paying royalties, an alternative is a “sales bonus”, which equates to extra money based on the number of units sold. For example, you’re paid $40K to write the project, with an additional bonus every time 5,000 units are sold.
Screenplay redistribution and “repurposing”
Terry: Much to the amazement of my writing partner and myself, when Wing Commander III was released, the entire 400- page script was also published on a CD-ROM that was part of a separate “hint book” package that retailed for $19.95. The hint book itself was largely lifted from our treatment and screenplay. We never received additional compensation for either the hint book or accompanying CD-ROM (we received no “written by…” credit in the hint book, or “from the screenplay by…” credit). We were never asked for permission to re-use our words in these arenas. It never even occurred to us to anticipate the screenplay being published on CD-ROM or in a hint book, and having this covered in a contract. Moral of the story: there have never been more venues for redistribution and repurposing of screenplays, treatments, etc. — CD-ROM, The Web, hint books, “Making Of” videos, novelizations, and so on. Ignore them at your peril.
Onscreen, packaging, and other credits
Deborah: You know the saying: “You’re only as good as your last credit.” You must make sure your contract spells out exactly what credit you’ll get, where you’ll get it, and how you’ll get it. Your best bets are to get credit on screen and in print. For onscreen credit, do you get your “own card” (where you’re listed all by yourself), or is your name buried in there somewhere with the project accountant? I once worked on a project in which I was told that “only the important people” would have their credits listed in the credit roll in the beginning of the title, and the writers were not included in that category. Writers were credited at the end of the title, with the guy who put the shrinkwrap on the box.
Terry: There’s no agreement on what constitutes above- the-line credits and below-the-line credits. My favorite credits are only revealed as an “Easter Egg”: you have to press Alt-Shift-6 three times in succession, spin your mouse around, and click on the taskbar — that kind of thing.
Deborah: Get credit. Not “special thanks to” or “words contributed by”, but “writer” or “designer” or “story consultant” — whatever is appropriate. Spell it out in the contract. On the box… Well, that’s another story…
Terry: There isn’t a star system established. In fact, most companies seem to have an aversion to actual human names on the box. It’s a software product, not an entertainment product, in their eyes.
Deborah: Bottom line, while credits are very well understood in Hollywood, you have to work to inform Silicon Valley, Multimedia Gulch, and Silicon Alley that credits are part of the mix…
Multi-platform compensation
Terry: A game you’ve written and/or designed may begin its life as a CD-ROM for PCs … but then it may be “ported” to other platforms. It may become a Nintendo cartridge, a Sony Playstation CD, or a multi-player Web Site. When you write a feature film, and it works its way down the foodchain (becoming available on cable TV, broadcast TV, videotape, etc.), you’re entitled to additional compensation. You should fight for the same in your contract, and structure the language to cover “ports” no one’s even dreamed of yet.
Right of first refusal on subsequent projects and spinoffs
Deborah: Make sure your contract specifies that if a sequel is done, you have the right of first refusal to work on the project in the same capacity. I was once “promised” a second title in a series, although it wasn’t written in my contract, and two days before the start date I lost the project because I had an agent, and the producer couldn’t deal with the fact that he had to go negotiate with my agent instead of with me. His exact words were, “Agents are sharks!” [Hey, don’t swim in the ocean, I say.] I lost the gig… Thinking ahead…if the Interactive project you worked so hard to write and design spins off to become a TV show?
Terry: They should come to you. It’s still your baby.
Sequel compensation
Terry: It’s S.O.P. that if your original storyline and characters spawn sequels, TV shows, and so on, you’re going to see a few more dollars. It oughta be the same on interactive sequels, updates, add-ons, Websites, etc….
Repurposing compensation
Deborah: If you design characters and environments that become screensavers, adorn mouse pads, turn into clipart, whatever, wouldn’t it be nice to see some additional compensation? Many companies are taking your content, reselling it, and making money off of it. The key words here are “your content”…
Ownership definitions and retention
Terry: Here’s where things get really sticky. In the feature world, the studio owns all rights to the characters and storylines you’ve created. In perpetuity. It sucks. We all know this. Interactive is a new frontier, and one of the reasons I personally am attracted to it is because there is a chance to balance the ownership scales a little. If you’re creating an Interactive or Web project from scratch, I think the retention of ownership rights to story and characters is something to fight for. Hard. Elmore Leonard can bring back Maximum Bob anytime he likes, and yet Doubleday is still happy to publish Elmore and everybody makes money.
Deborah: A collateral issue is when you’ve designed a project and halfway through production, the plug is pulled. Who owns the project then? If you’re the originator, you should be able to take the project to another software publisher. If you’re “just the writer” on a project and the plug gets pulled, you have a stipulation in your contract for a kill fee. You need to get paid for your work.

Deborah: Collect all the check marks, and you’re home free…
Terry: Yeah, in a perfect world… It’s why they call it negotiation…
Deborah: And who’s going to do the negotiating? Agents! Can’t live with ’em — can’t shoot ’em.
Terry: Should you get an agent who doesn’t know the difference between a PC and a toaster? Or should you get a 19- year old computer geek who has trouble reading the backs of cereal boxes?
Deborah: Or maybe an attorney…or maybe all three…
Terry: Something to kick around…next month…


Written by tborst

November 11, 1996 at 5:50 pm

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