Seeking advice on an agent contract

[Quickbread]

Hi all. I normally don't post here because I'm not a screenplay writer, but I just received an offer from a literary agent for my novel, and I'm looking for some input on a TV/film-rights clause in his contract.

His company is more of a talent management company than strictly a literary agency, with a speakers bureau and also an agent who focuses on selling film/TV rights. So one of the clauses in the contract relates to that agent potentially selling the film rights and also becoming a producer for such endeavors. I'm not sure whether that's something advantageous for me, neutral or potentially not in my best interest.

The contract clause says (and I might delete the verbiage below after a few days):
DELETED.

Any thoughts on this would be greatly appreciated. Thanks!

[LIVIN]

I know nothing about legal jargon. To be frank, I think it is hogwash created by people trying to dupe other people. They use their own jargon so no one outside the circles of the jargon can make sense of it. But, I digress... (though, this provides perspective on my mindset regarding such stuff)

Anyway, I don't like it. Specifically:

"to take the position of Producer or Executive Producer of any film or television program, and assign any other credits that may be applicable."

This could dillute your "story by" (assuming you don't write screenplays) credit by attaching other writers. I'm already assuming the "screenplay" credit(s) will go to someone else.

And, generally, I just don't like the power it provides the other person and seemingly takes away from you.

But, I'd like to hear some professional opinions, as I realize I need to become more learned in these areas.

[LIVIN]

Basically, any sale of rights (which this person is already making commission on), comes with a stipulation.

The stipulation being that the agent/seller of rights GETS POWER. In my opinion, if anyone should get power, it should be you. Though, I don't think that's very likely.

However, it seems the likelihood of selling such rights diminishes becuase the buyer wouldn't want to automatically give up POWER, after all, that's why they are buying the rights.

[cbenoi1]

Warning: IANAL.

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Should the Agency get you a movie/TV deal:

Agency or Studio, as a producer, will give Author copyright credit where applicable (usually a mention that says "Based on the novel by Author")

Author may specify Agency should not be the movie/TV producer (maybe you don't want a crappy film)

Agency gets at least 15% out of the deal; Author to pay nothing if Studio pays Agency 15% or more, or the residual if Studio pays less than 15%. (ex: Agency 15% = Studio 8% + Author 7%)

Agency gets its 15% paid from Studio or Author - even if the movie isn't produced - by whoever gets money first; Agency to reimburse Author once Studio pays Agency.

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In other words, you agent wants to make at least 15% of any movie or TV deal and it doesn't really matter - for them - who produces it or who pays their fees.

That's the way I understood it. But I'm Not A Lawyer...



What sort of editorial input do you have in such a movie/TV deal? For example: are you allowing any movie producer the option to merge and/or change any character in a significant way?

-cb

[Quickbread]

Thanks for the comments, guys.

LIVIN, I'm definitely not one for giving up rights. But I'm not sure how this clause constitutes giving up power I'd otherwise have.

Cbenoi1, that's how I read the clause, too. As long as I retain the original novel-writing credit and can say no to the Agency as producer on a case by case basis, I don't really see a disadvantage for me. Right?

As far as the level of editorial input on a production, I'm not sure authors often get this. Unless they're heavy hitters like Annie Proulx. Maybe I'm wrong about that, though? I really don't know much about adaptations. How much can an author ask for?

What's the potential downfall of Agency as producer?

[frimble3]

No expert on the business, (almost total ignorance, in fact), but have they ever produced anything before? Was it any good?
If putting their name on a project as 'producer' is just a pro forma thing, they don't do any work, but they get the credit/money of being a 'producer', is it possible that they will not make a deal for your work unless they get that 'producer' credit for themselves? This might restrict the offers you get.
Would this be a conflict of interest?

[cbenoi1]

> As far as the level of editorial input on a production, I'm
> not sure authors often get this.

Usually they have no say. 'Professional' script writers are bought into the mix to have a script ready.


> How much can an author ask for?

Studios like to have free reins in the creation process and there are stories aplenty where the original author ran a movie project amok (Clive Cussler comes to mind). But some authors want some clause to ensure some level of continuity with their characters because they have their own sequels in progress. There is some disclosure that needs to be put on paper. It's a negotiation point. The original author is often 'brought on board' as a consultant; it's a form of compromise that's win-win for all parties involved.


> What's the potential downfall of Agency as producer?

It's like asking a dentist to repair a microwave. Different skillsets. Some agencies also do TV advertisement, so they have some video production experience. A little digging goes a long way.

Before you sign anything: talk to a lawyer.

-cb

[Quickbread]

Frimble3, that's a really good point. I'll have to ask the agent about that.

cbenoi1, as far asking for some creative oversight on a production, does that appear in the contract for the film/movie rights after the agent sells them? I'm not sure that gets stipulated in the agent contract itself. But I really don't know.

It's like asking a dentist to repair a microwave.

That made me laugh. Yeah, I could see that. It might not be desirable. So maybe I should just ask for the right to choose on a case-by-case basis and then I can say yes or no as things come up. It might be easier to decide what's a good or bad idea if there was an actual scenario versus generic contract language.

I actually ran the contract by Victoria Strauss, our own resident writer expert on agents and their contracts. She said that clause sounded like a potential conflict of interest, but she didn't feel qualified to really guide me on that point. (She actually suggested I post it here to get some input from screenplay writers.)

Thanks again, everyone. I'll bring these things up to the agent and will report back what he says.

[cbenoi1]

> cbenoi1, as far asking for some creative oversight on a production,
> does that appear in the contract for the film/movie rights after the
> agent sells them?

No. It's a power relation thing. How much sales you have versus how many books in the series you sold already and how many are in progress will determine how much you can push for creative oversight.

First-time authors with unproven works have little to no negotiation power, and many in that situation will simply cash in the rights and leave the Studio deal with the movie. At best, the movie will attract the audience to the book and thus increase your sales.

I don't know which of those situation you're in.


> It might not be desirable.

You will need to check the agency, their past movie/TV projects, etc.

Again, that's a discussion to have with a lawyer.


-cb

[Quickbread]

Well, sadly I'm a first-time author, and my novel's not part of a series, so I'd probably be in one of those situations where I'd just need to cash the check, keep my fingers crossed and try my best to forget about it.

I still don't know the track record for this film-rights agent as producer, but I found an interview where he said this (paraphrased):

If he were only an agent, he'd only be able to sell the performance adaptation to clients’ books and sit with them on the sidelines and wait for news. The buying producer then can do as they please with the property, and the agent/writer don't usually know what’s going on. But as a manager, he can work as a producer on the adaptations. So his clients save the commission (when he gets paid by the studio as producer), and he works alongside the buying producer to bring the project to fruition with his clients' interests in mind. This is a win-win for him and his clients.

Will definitely keep exploring this issue. Thanks!

[cbenoi1]

I see. It's a timing issue.


Option A - Agency Only

You pay the Agency before you get paid by the Studio. You thus need to fork up money upfront for the Agency fees, regardless when the Studio pays you. The Studio can sit on the project for years. The Studio needs to formally abandon the project for the Agency to reimburse you the fees.


Option B - Agency is the producer

By being also the producer, the Agency can afford to wait for the Studio to pay up so there is no cash upfront for the author



Does that clause expressed exactly those two options and ONLY those two options? Only a lawyer can tell you. For my part, I think this clause should be written as two separate clauses, because they express two separate and mutually exclusive fee structures.

-cb

[Quickbread]

Well, the way I read it, the author pays the agency its 15% commission for selling the film rights. That's standard regardless of who the producer is.

And if the agency becomes the producer, the agency would reimburse the author up to that 15% commission, once the studio pays the agency its producer fee.

[LIVIN]

Search the agent on http://www.imdb.com and see what they've produced. If they've only produced dog-pie, there may be reason to be skeptical.