Key Points in Writer-Producer Agreements

There are several types of agreements that arise between producers and writers. These include literary purchase agreements, transfer or license of rights to literary properties and option agreements.

If a writer is a member of the Writers Guild of Canada or the Writers Guild of America and as a producer you are a signatory to the Guilds’ basic agreements, then the writer’s agreement will be governed by either the WGC Independent Production Agreement, or the WGA Theatrical and Television Basic Agreement. This column will deal only with non-WGC and non-WGA agreements, leaving WGC and WGA agreements for later columns. You can find further information on those organizations at their respective websites: www.writersguildofcanada.com and www.wga.org. I will also leave option agreements for a later column.

At its essence, a writer’s agreement provides for the acquisition of some or all of the rights in a story from that story’s creator. From the standpoint of a producer, there are several key points to consider for inclusion in your writer’s agreement.

Will you acquire all of the rights in the story, or will you only license some of the rights? All things being equal, the former is obviously more desirable. However, in some situations a writer might only be prepared to license some of his rights, for example licensing to you the right to make a feature film adaptation of a story, but retaining the right to live stage adaptations. Also, financial considerations might permit you to acquire only a portion of the rights in a story. In these situations, it is desirable for the producer to include in the agreement a right of first negotiation and last refusal over those rights retained by the writer.

Some of the rights you might acquire include the right to produce: a feature film, a television series, a remake, sequel, prequel, serial, spin-off, “making of” or other similar feature film or television production.

As producer you would normally acquire rights that are exclusive, irrevocable, worldwide in territory and perpetual in duration. The rights you acquire will cover the story and its themes, characters, fictional names, etc. You will also acquire the right to edit the story to your sole discretion. The agreement should also provide you with the right to exploit the story and any resulting productions in all forms of media and through all channels of distribution.

It is important that the agreement provide that the writer irrevocably waives any moral rights to which he might be entitled. If as a producer you fail to deal with this issue explicitly in the agreement, you might find that you are unable to alter the story in a manner objected to by the writer. You might also find yourself unable to obtain financing for the production.

There are several promises by the writer that should be set out in the agreement. Some of the more important ones are as follows. The writer should promise that the work is the sole and original work of the writer and is not a derivation of another work. The writer should promise that the work doesn’t infringe the rights of any other person, and is not defamatory, obscene, or otherwise unlawful. The agreement should contain a promise by the writer that there are no claims in existence or even threatened against the writer regarding the work. You might also consider having the writer promise that he is a citizen, or landed immigrant, of Canada.

As with many of the agreements you will enter as producer, it is desirable in a writer’s agreement to provide that the other party is not entitled to seek equitable or injunctive relief. In the event a dispute arises between you and the writer, rather than being able to seek an injunction that might delay or shut down a production, the writer will be limited to bringing a lawsuit seeking monetary damages.

So, whether you are acquiring all of the rights in a story, or a package of rights that is limited in some respect, these are some of the key points you should look for in your agreement. There will of course be additional provisions dealing with compensation and credits for the writer, and other more general provisions that are typical of entertainment industry contracts. But the agreement should be able to cover the important issues without being overly long or complex.