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SYS Podcast Episode 239: Entertainment Attorney Michael DeBlis On Option Agreements, NDAs, And Standard Release Forms (transcript)

This is a transcript of SYS Podcast Episode 239: Entertainment Attorney Michael DeBlis On Option Agreements, NDAs, And Standard Release Forms.


Ashley: Welcome to Episode #239 of the Selling Your Screenplay Podcast. I’m Ashley Scott Meyers, screenwriter and blogger of the www.sellingyourscreenplay.com. Today I’m interviewing Michael DeBlis. He’s an attorney who does a lot of work with screenwriters and filmmakers. We dig into option agreements, NDAs and a number of other legal issues that screenwriters might face. Stay tuned for that interview. If you find this episode viable please help me out by giving me a review in iTunes or leaving me a comment on YouTube or retweeting the podcast on Twitter or liking or sharing it on Facebook. These social media shares really do help spread word about the podcast so they’re very much appreciated. Any websites or links that I mention in the podcast can be found on my blog in the show notes.

I also publish a transcript with every episode incase you’d rather read the show or look at something later on. You can find all the podcast show notes at www.sellingyourscreenplay.com/podcast, and then just look for Episode Number #239. If you want my free guide- How to Sell a Screenplay in Five Weeks you can pick that up by going to www.sellingyourscreenplay.com/guide. It’s completely free, you just put in your email address and I’ll send you a new lesson once per week for five weeks along with a bunch of bonus lessons. I teach the whole process of how to sell your screenplay in that guide. I’ll teach you how to write a professional log line and query letter and how to find agents, managers and producers who are looking for material. Really it’s everything you need to know to sell your screenplay. Just go to www.sellingyourscreenplay.com/guide.

A quick announcement, I just wanna start publishing more screenwriting articles on Selling Your Screenplay, so I’m looking to hire a few freelance writers to write these articles. Here’s what I’m looking for. I need someone who has some produced credits as a screenwriter, I need someone who has written blog posts or articles about the craft of screenwriting and can send me some links to those articles so I can have a look at them. Ideally I would like to find someone who has experience with SEO and content marketing. The whole purpose of this project is to get more people to the blog. So if you understand how SEO and content marketing works it’s a huge plus. So please mention that in your cover letter if you do have experience in these areas. Ideally I’d like to find two freelance writers who will write one post per week.

I’m going for quality here, not quantity. The articles will be on screenwriting topics obviously and each article will need to be between 400 and 600 words. In terms of payment at this early stage I’m not really sure of the [inaudible 00:02:37] on this so the budget is pretty modest. I wanna get this project up and running to see if it’s actually going to bring people to the blog and podcast. So please tell me in your cover letter what you will charge to write these types of articles, but please understand that at least to start this is going to be a fairly modest sum. If this sounds like something that you might be interested in learning more about please send me an email at info@sellingyourscreenplay.com.

Just in the subject line put something like “Freelance writer position”. There’s no reason to send a fancy resume. I see those often when I’m hiring people and those don’t mean a lot as much as actually seeing the articles you’ve written and just having a more customized cover letter that really addresses what I’m looking for. So just to sum up I don’t need a resume. I would say just spend a few minutes writing a very concise cover letter kind of explaining your background and linking to some of the articles that you’ve written. Again, if this sounds like something that might be interesting to you just send me an email at info@sellingyourscreenplay.com.

A quick few words about what I’m working on. As mentioned over the last couple of weeks, I’m in the final stages of getting my crime, thriller feature film- The Pinch out into the world. Again I just wanna quickly mention our world premiere at Action On Film Festival which is in Las Vegas. The screening is going to take place on Wednesday, August 22nd at 10:00 pm in the Brenden Theater which is located in the Palms Casino which again is in Las Vegas, Nevada. If you live in the area or planning to travel into the area around this time please do check out the film. I will be there and if you do end up showing up please just say hello. It will be nice to get to know some of the people that listen to the podcast and just hear what you’re up to. I will link to the ticket information in the show notes.

If you can’t make it to the screening in Vegas, no worries. I will be putting The Pinch for a limited time available for sale on the website. Just go to www.sellingyourscreenplay.com/thepinch. It’s all one word, all lower case. I’m gonna keep it for sale on the website for the next couple of weeks and then I’ll be rolling it out to iTunes and Amazon after that. Last week too I started to put together the deliverables for the release of the film. The aggregator is telling me that it can take 45 to 60 days to get it up onto Amazon and iTunes. So this week I’m gonna continue to work with the aggregator to make sure I’ve got all my deliverables in place and then hopefully this week or next week we will set a hard date. Again, that’s probably 45 or 60 days in the future, so you know, maybe September, October at the latest.

I’d like to get the release done in September but if it has to push back to October that’s fine as well. But hopefully this week or next week I will have a hard date. I also do have a new version of the trailer that I cut last week. It’s very similar to sort of the official Pinch trailer that I put out several months ago. Just a few tweaks, some audio tweaks and cut a few…there’s some little tweaks to the video as well and I will link to that in the show notes as well if you have any interest in checking that out. So that’s what’s going on with The Pinch, and now let’s get into the main segment. Today I am interviewing attorney Michael DeBliss, here is the interview.

Ashley: Welcome Michael to the Selling Your Screenplay Podcast. I really appreciate you coming on the show with me today.

Michael: Thanks for having me Ashley.

Ashley: So to start out, maybe you can tell us a little bit about your background. Where did you grow up and how did you get interested in the entertainment business and specifically the legal industry with screenwriters?

Michael: Sure. I grew up in New Jersey and that’s where I still am today, right outside of New York as a matter of fact. I went to law school right out of college and believe it or not this interest that I have in theater law and in entertainment law has sprung out as a result of my passion for acting and my having gone to conservatoire. So it was kind of by accident that I caught the entertainment law bug. It was happenstance from a lot of my friends in conservatoire asking me questions about booking jobs and about the things that go along with being an actor and going out on auditions. So I realized that this was an interesting area and one that was fascinating for me both as a working actor and as a lawyer.

So that’s kind of what piqued my interest and today I’m very proud to say that I serve the entertainment industry as an attorney that does a lot of contrite work for both actors and producers and film makers and anybody that comes to me and has general questions about shooting films.

Ashley: Okay perfect. So let’s dig into some legal issues that screenwriters might face. Suppose there’s two writers that are just collaborating, is there some sort of a collaboration agreement that two writers should have or could have between them? Again, we’re not talking about pre-existing stuff and we’re definitely not talking about getting to the point where they’ve optioned a script but just two guys that have an idea and they wanna write a script together. Is there a collaboration agreement and what would sort of be in that agreement?

Michael: Sure, I definitely would recommend one and the reason why is for obvious reasons. First and foremost, whenever there’s collaboration going on between two parties especially in this niche it’s important that both parties are protected. One can only imagine what would happen if one of the parties basically takes an idea, misappropriates or outright steals your idea and goes off on their own to create this work leaving out the other party. And so when you actually ink a contract these things are nailed down in the contract and what’s known and what is collaborated upon by the parties and brainstormed by the parties is something that is between them.

It then becomes basically a…while it’s a private agreement it becomes something that is enforceable if one of the party decides to go rogue and to attempt to misappropriate the idea. So it protects both parties and guarantees both the right to remedies, meaning damages if one of the parties decides to take it and turn it into an adaptation without including the other party.

Ashley: Okay, perfect. So let’s dig into option agreements. First question about option agreements, and I think if anybody is out there is listening to this and doesn’t quite understand what an option agreement is, I think this first question will hopefully answer that. Why does a producer, financier or a studio prefer to acquire an option from the screenwriter as opposed to just doing a purchase outright from the beginning?

Michael: Well, first and foremost it’s cheaper to do. Option agreements are analogous to leasing a luxury car. That’s the best example I could give. When you think about it, if you go to an auto dealership and you don’t have…a lot of people don’t have six figures to purchase a sports car but this might be their dream. They might be yearning to drive around in a BMW or a Porsche. So what they’ll do is they’ll lease the car. So that’s one of the reasons. The second reason is in many cases filmmakers might not be ready to actually shoot the film today. They may need time to get the cast together, they may need time to find the perfect location and all of this takes time. So option agreements basically give the filmmaker a reasonable time to get things in order before actually shooting the film.

It’s usually in legal lease actually we call it a reasonable time and what is a reasonable time varies from state to state, but typically it’s anywhere from 180 to 365 days. During that time the filmmaker is basically expected to be working towards production. If he or she begins to kind of drag their feet then the screenwriter can actually include a clause in the agreement that says that the rights expire and return to the screenwriter at the end of that period of time. But essentially what the option purchaser guarantees themselves during this period is a temporary exclusive right to this screenplay and the ability to produce it.

Ashley: Okay, perfect. What are some common problems that you’ve seen with option agreements that are presented to screenwriters?

Michael: Yeah, there are a number of them. Usually these problems stem from a lack of including certain provisions in the agreement itself. What I’ve seen is I‘ve seen option agreements that have failed for reasons such as allowing the screenwriter to withhold certain rights. So for example one of the rights that I’ve seen the filmmaker allowed the screenwriter to withhold is the right to adopt or adapt the work for something like a stage or a radio play, and then I’ve seen the screenwriter basically go out and sell the screenplay to another production company that actually does a stage or radio play that is virtually identical to the play or to the film that the seller or that the buyer, the other production company thought that they had the exclusive or at least temporary right to.

So it’s very important to have a reserved right or a holdback and what that affords the purchaser or production company to is the right to actually produce what he or she feels that they’ve purchased the option to produce. While the screenwriter has the right to do a stage or radio play they understand that it’s within a certain parameter so that this doesn’t creep up and that they don’t try to find another production company to produce the very same work

Ashley: Yeah. Are there any tell-tale signs? I think most of the people that are listening to this podcast, they’re gonna be on the screenwriter end so they’re gonna be basically…a producer is gonna come to them and present them with an option agreement to sign. Are there any tell-tale signs that the option agreement is probably not a great deal for the screenwriter? Some things you’ve seen producers kind of try to maybe swindle or just sneak things in to a contract that maybe a naïve screenwriter might not understand or even question.

Michael: Yeah, absolutely. When you think about it the parties at the very beginning have no idea about the success or failure of the screenplay that’s gonna be adopted into this film or this play. So a lot of times the production company will attempt to get the screenwriter to waive any right to royalties or commissions on merchandise and on future adaptations of the work, so sequels for example, YouTube releases, you name it. The screenwriter wants a good lawyer who represents the interest of the screenwriter is going to ensure that they have the right to royalties and to commissions on the merchandise that might evolve out of this film. Similarly when it comes to sequels and when it comes to releases on…

Back in the day of course it was releases on DVDs, but nowadays with all the technology that we have and all of the ways in which these films can be packaged up after they’ve featured, it’s very important to ensure that the screenwriter is protected and has the right to the royalties and to the commissions that come from these derivative releases.

Ashley: I see. Okay, so this next question, and this next question may not be a good question for a lawyer, but I’d be curious to get your take on it. Again, I get a lot of emails from screenwriters where they found the producer, he wants to option a script. But in a lot of cases the producer wants a $1 option, $10 option, maybe is willing to kick in $500, and the screenwriter, they’re generally fairly green so they’re not necessarily versed in these option agreements and it’s always like, “Well, can I get a lawyer?” And it’s like you’re gonna go underwater. You’re gonna lose money on this deal if you hire a lawyer because the lawyer is gonna be more expensive that the $500 you’re gonna get for the option agreement. In those sorts of cases, what do you recommend a screenwriter to do?

Michael: Yeah, it’s a double edged sword and I completely understand the scenario. It basically puts a screenwriter between a rock and a hard place. On the one hand they’ve got somebody who’s interested in them and on the other hand they want to protect themselves and make sure that it’s not an unfair agreement and one that’s heavily favored for the producer. Here’s the thing, I will say this. Most lawyers are pretty fair when it comes to doing consultations and to the extent possible, a lot of lawyers recognize this situation that the screenwriter is in and will do a free consultation or complementary consultation or perhaps even charge a flat fee that will take into consideration the fact that the screenwriter isn’t going to be getting rich or wealthy off of this.

Not to toot my own horn but I do offer complementary consultations and I will even sit down with a screenwriter and go through everything, because my biggest concern is that I don’t want to see the screenwriter be at a distinct disadvantage in terms of negotiating and I don’t wanna see them get into a contract that might be what we call adhesive in nature. An adhesive contract is one that is so one sided in favor of one party that it’s so unfair that a lot of times if you can go to court over it the court will strike it down and find that the screenwriter was taken advantage of. But the problem of course is that getting to court has a fee, a very heavy fee and so rarely do those cases actually ever get to the court house.

Ashley: Yeah, okay. I think that’s a great answer and it’s exactly what you’re saying. It’s a rock and a hard spot. You may regret saying you give free consultations on the podcast [laughs] but we’ll see. In any event let’s talk about NDAs now and standard release forms. I get a lot of screenwriters asking me, “Hey, I’m submitting my script to this production company. Should I get them to sign an NDA?” And then sort of the flip side of that coin is the production company won’t read the script unless they have a standard release form. So let’s just talk about those for a second. When someone comes to me and says should I make them sign an NDA, my answer is always…again, I’m not a lawyer and so I’d be curious to get your take.

But my answer to them from the screenwriters perspective is someone who’s a hustler out there trying to sell screenplays is that you’re making a mistake trying to get the producer to sign an NDA is just one more hurdle that they may not jump through to read your script and you’re diminishing at least in some small way your chances of actually getting them to read the script, option the script and produce the script. So I advise against it. I don’t really think most people are giving up much by not getting these NDAs signed. I don’t think most of the producers are out there. So what is your take on these NDAs that screenwriters try and get the producers to sign?

Michael: Yeah, I can tell you that I agree with you 100%. You’re not even gonna get your foot in the door if you insist upon the production company signing an NDA. In today’s climate and in the industry today they just don’t sign them. It’s very simple, they shut the door on the screenwriter before they’ve even entered by stating that if that is a condition to their reviewing the script then, “Sorry, I’m not gonna sign it.” Then on the other hand you have a screenwriter who might be uncomfortable sharing his or her idea with the production company for fear that if the production company has some interest in it they might take it and run with it without compensating the screenwriter. So what do you do in a situation like this? It is a double edged sword.

I’ve heard of situations that have been really tragic in many ways where the screenwriter has been very open in sharing their ideas with the production company and has capitulated to the demand of not having the production company sign the non-disclosure agreement only to find out a year or two later that their idea at least partially has been turned into a film or something that is revenue producing. So it’s a tough thing. You wanna gain access to these production companies and it’s so one sided that you have to do it on their terms. I tend to agree with the advice you are giving to the extent that you want your script to be actually considered and to have even a slight chance of having it considered, you actually have to play ball with them and you actually have to acquiesce to the demands because that’s kind of what the standard is in the industry today.

Ashley: Yeah. So let’s talk about standard release forms and as you said that’s kind of the opposite direction where a production company says, “Well read your script but first you have to sign this standard release form. Maybe you can describe what at least should be typically in a standard release form. What are the things that the writer is sort of looking at here when he’s reading one of these standard release forms?

Michael: Well, the number one thing is you wanna look to see what rights you have as a writer and what rights they have. Again whenever another party addresses the agreement is almost inferred that it’s going to be written in a way that is in a light that’s its most favorable to that party, no different than any other contract. So you want to see what you’re giving up and what rights are being retained by the other party. I can’t stress enough that it’s so important to have a lawyer review this because even the smallest clause can be the big game changer in contracts of this nature , but at the end of the day as a screen writer you want to understand that you do have rights and that while you’re dealing with a production company who is substantially bigger and substantially carries more weight, you at the same time have the right to reserve things for yourself  as well and you can’t agree to give up the entire firm all together.

Ashley: I’m curious, like I read these release forms, am always submitting scripts, so am always reading these things. When I read them typically they seem to me to be so broad. They typically just say that we are not gonna steal your idea and certain ideas are not copyrightable and we can use the ideas in your script that are not copyrightable. But that’s essentially all the standard release form really says. Sometimes there’ll be like a provision where if there’s a legal action it has to go through arbitrations of the courts. Maybe there’s stuff like that but when it just basically is stating the law, like of course they can use your ideas that are not copy writable. If it’s not copy writable then it’s not something that is protected. So I’m just curious, what do they really do?

All they’re doing is kind of stating the obvious. Like what is the protection that the production companies feels like they’re getting from making the writers sign it? Because it’s really just a nuisance. I read these things and I’m like is this really…you’ve got to print it and sign it and scan it back in and then tag it and get it on the email. It’s just a big nuisance and I read them and I’m like, will this really do anything for you in a court of law? Of course you can’t steal my ideas that are copyrightable but if you do steal my ideas then of course I can sue you. What is the protection that these production companies are actually getting from this?

Michael: Yeah, they’re very general and vague and I think to be honest with you half the time they don’t even know what protections they’re getting from them except for the fact that their lawyers are telling them that it’s critical to ink these agreements. I can tell you that for…you mentioned an interesting topic- arbitration. Arbitration is considered a more favorable forum for the party that’s insisting upon it, than the little [inaudible 00:26:04] Arbitration clauses are very common in car purchase agreements where things go wrong with the car that’s [inaudible 00:26:15] that’s bought off the lad. At the same time so these production companies usually insert these arbitration clauses and at the end of the day that’s something that is usually non-negotiable.

You’re not gonna be able to force a production company to agree to a lawsuit in a state forum because state forums usually empanel juries and juries are fair and impartial and tend to view the facts neutrally and verdicts can be very high there. So arbitration clauses are very standard and it’s often times hard to fight back against these agreements because they’re so general and they’re so vague and they’re so one sided that a lot of the time the production companies will avoid the hustle of trying to negotiate specific terms into them if the other side the screenwriter decides or has a lawyer on their side that is insistent upon changes being made. A lot of times they go unchanged and then the other side of the argument is the one you just said.

What are the production companies really guaranteeing and getting from them because they’re so general and they’re so vague and ambiguous. I would say not a lot because at the end of the day the specificity that’s included in them is not much. So an argument can be made by the screenwriter that, “Hey, this is nothing more than a boiler plate agreement that I’ve been forced to sign and it’s adhesive in nature and it’s used by the production companies with every party. It’s not specific to me, it didn’t take any consideration my personal situation and…

Ashley: You just said “adhesive”, what does that mean? Adhesive, what does that mean to the agreement?

Michael: Well, adhesive means that it’s so one sided and that the other party had no choice but to accept the terms that were in there. For those reasons and those reasons alone the agreement should be struck down because I had no choice but to sign it. Here I am, I’m John Smith, I don’t know anything about this and I’m being forced to sign an agreement and being told that the production company isn’t even gonna consider my agreement unless I sign this. And so what legal rights did I even come into with this agreement. And so it’s one argument to be made but at the same time it’s also by signing it you’re agreeing to the terms in the contract. And so it’s a double edged sword.

Ashley: Yeah, so have you ever seen any litigation that sort of centered around one of these release forms? Not an option agreement or a purchase agreement but actually on one of these release forms. Have you ever hears of any litigations and how did that go?

Michael: I haven’t heard about litigation in the area of these release agreements but I’m sure that it’s happened and I’m sure that the production companies have probably…if it was a bone of contention and it was a fight that they wanted to establish president on I’m pretty certain that they flexed their muscle and went to court.

Ashley: Yeah, perfect. So Michael, this has been a great interview and I really do appreciate all your legal expertise. What’s the best way for people to keep up with what you’re doing? Twitter, Facebook, email, blog, anything you’re comfortable sharing I will round up for the show notes but you can just tell us that now and then if people wanna learn more about you they can follow up with that.

Michael: Sure, and thank you so much for that Ashley. I’m very active on social media. My policy all along has been to share as much information as possible with the artistic community as I can. And so I do keep a very vibrant blog. You can find my blog on my website which is located at www.deblislaw.com. You can also find me on social media at my Twitter handle which is M.J Deblis. You can find me on LinkedIn and you can find me on Facebook. I even have a Facebook page that’s called Theater At The Court Room and then Mixing Law and Art. You’re free to view any of the articles and blog posts that I put up there. As I said, my feeling is I try to share as much information with the artistic community as I possibly can and wit that in mind I put everything up for free. I don’t even have any of the standard opting forms that are usually found on other legal websites. The information is there, it’s accessible and if you have follow up questions I’m always willing to take calls and emails any time.

Ashley: Perfect. I noted when we started emailing and setting up this interview you had a good number of blog posts that you had written. I wonder if there’s one or two blog posts that maybe you would recommend just so people can kind of get a feel for your writing and kind of what you’re up to. Is there maybe something specific that would be helpful for screenwriters? And I’ll get those again with the links in the show notes.

Michael: Sure, as a matter of fact one of the ones that I just recently posted and that’s on point is called Making The Deal Selling or Buying a Screenplay. So it deals with not only the buying side but also the selling side and that might be of interest to your listeners. The other one that I recently put up there has to do with…it’s like a top 10 list of things that a screenwriter would want to look for in a contract. So they can go online and like I said it’s all on. The only thing that I wanted to clear up is that the blog is called Tax Chat but I don’t wanna mislead your audience into thinking that it’s exclusively tax. It’s broad enough to include issues pertaining to the entertainment law industry specifically for screenwriters as well.

Ashley: Okay, perfect. So yeah, I’ll definitely round all that up for the show notes and link over to it. Again Michael, thank you for coming on and talking with me. I really appreciate it and I know other screenwriters will find this very valuable as well.

Michael: Great, thanks for having me Ashley. It was a pleasure.

Ashley: Thank you, will talk to you later.

Michael: Take care.

Ashley: Bye.

I just wanna talk quickly about SYS Select. It’s a service for screenwriters to help them sell their screenplays and get writing assignments. The first part of the service is the SYS Select screenplay database. Screenwriters upload their screenplays along with a log line, synopsis and other pertinent information like budget and genre and then producers search for and hopefully find screenplays that they wanna produce. Dozens of producers are in the system looking for screenplays right now. I launched this service at the beginning of this year and we’ve already started to see some success stories. You can check out SYS Podcast Episode #222 with Steve Deering. He was the first official success story to come out of the SYS Select database. You can learn about all of this by going to www.sellingyourscreenplayselect.com.

When you join SYS Select you get access to the screenplay database that I just mentioned along with all the other services that we’re providing to SYS Select members. Those services include the monthly newsletter that goes out to our list of 400 producers who are actively seeking writers and screenplays. Each SYS Select member can pitch one screenplay in this monthly newsletter. We also have partnered with one of the premier paid screenwriting leads sites so I can syndicate their leads to SYS Select members. There are lots of great paid leads coming in each week from our partner. Recently we’ve been getting five to ten high quality paid leads per week. These leads run the game, there’s producers looking for specific types of spec script to producers looking to hire a screenwriter to write up one of their ideas or properties.

They’re are looking for shots, they’re looking for features, TVs and web series pilots, all types of different projects. If you sign up for SYS Select you’ll get these leads emailed directly to you several times per week. Also you can get access to the SYS Select forum where we will help you with your log line and query letter and answer any screen writing related questions that you might have. Also in the forum are all the recorded screenwriting classes that I’ve done over the years, so you’ll have access to all of those as well. The classes cover every part of the writing process from concept to outlining to the first act, second act, third act as well as other topics like writing short films and pitching your projects in person. Once again, if this sounds like something you would like to learn more about please go to www.sellingyourscreenplayselect.com.

On the next episode of the podcast I’m gonna be interviewing legendary filmmaker Larry Cohen. He had a great career as a screenwriter writing such studio films as Phone Booth, Guilty As Sin and Maniac Cop, but has also written and directed a slew of classic films such as Black Caesar, It’s Alive and The Stuff. He is a fascinating, it’s inspiring to hear from him. Keep an eye out for that episode next week. Anyway, that’s the show, thank you for listening.