I’ve already talked about options and script sales, and those of you who have read those posts might have noticed several mentions of the fact that production companies don’t always end up buying the scripts they option or work on. It’s actually a common occurrence for a company to option a script, pay to have some writing done, and then ultimately decide not to buy it for any of a variety of reasons. That situation naturally raises the following question:
What happens to those drafts written while the work was under option?
Remember that the script is legally not owned by the writer during an option period; it’s owned and under the control of the company. If writing services are included in the deal, those services are most likely in your contract as a work for hire, meaning that in exchange for the money you’re being paid, the results and proceeds of your writing are owned by the company that’s paying you (i.e., you don’t own that draft the way you own a script you wrote on spec).
Think of it like an artist who’s commissioned to do a family portrait. The money is what the artist receives in exchange for the work. He doesn’t then also get to keep the portrait after he’s done; the portrait belongs to the family that paid him to create it.
The same is true of drafts and rewrites and polishes that the company is paying a writer to perform. Even if the rights to the original script are returned to you, those drafts you wrote for the company aren’t. Those drafts then become sterile scripts… a draft of a script that the company owns but cannot produce because they don’t own the rights to the underlying material (your original script).
The company can still sell their rights to a sterile script itself, but they can’t actually produce it and neither can anyone it’s transferred to unless they also reacquire the underlying rights from you. The most common situations where a company sells their sterile script rights are when either the original author or a subsequent production company wants to purchase all the various versions of a project in order to consolidate their rights, avoid potential claims of infringement, or have access to some element that was developed in a sterile script.
For example, if Studio A commissions a bunch of drafts to try and get a project off the ground and subsequently abandons the effort, Studio B might come along and, in the course of trying to get the project made, will likely try to buy all the sterile drafts from Studio A so that they have a complete accounting of all creative material on the project, and can also avoid the possibility of Studio A claiming that some elements of the finished film were present in the sterile drafts they own.
Writers should note that they’re not allowed to use the material in a sterile script without the owner’s permission, just like a company can’t use a writer’s underlying property without the writer’s permission. If one company has you rewrite the script to add a new character or improve some dialogue, for example, that character and that dialogue is off limits to you even if you get the rights to your original script back. And if you have the opportunity to send out that script for consideration again, you need to send your original draft, not the sterile draft that someone else owns.
This is why writers need to be organized and meticulous about their drafts and business relationships. The last thing you want is to send a company a script you don’t own and have them fall in love with something they can’t use.
Keep track of your drafts with a sensible filing system so that, in the event an option lapses and you get your script back, you can easily and quickly transition back to a draft that precedes that company’s involvement. (It’s also a good idea to keep track of your own options so that you’re not relying on someone else to tell you when you get your rights back.)
For my own writing, I include a date with every file name, e.g. Untitled Spec 01-01-2017, and have a separate folder for each project, with subfolders for each entity that commissions work. For example:
- Untitled Spec #1
- Company A
- Company B
- Untitled Spec #2
- Producer X
- Untitled Spec #3
Using these two methods, I can easily sequester all the work I’ve done for a specific company in its own folder, and the date component of the file name will let me know which drafts were written during the option period and which ones weren’t. This way, I can easily figure out which drafts are off limits if an option lapses and I want to try to set a script up somewhere else.
It’s a good idea to have some kind of system that helps you keep track of what things you wrote for someone else and what things you wrote for yourself. Passing off a sterile script as your own is technically copyright infringement (and a violation of your representations and warranties in a subsequent option agreement), and companies take their ownership of sterile scripts very seriously. After all, they did pay for that work.
If you’ve been developing your script with other parties, you should definitely keep track of which drafts of your scripts become sterile in the course of doing business so you don’t confuse them with the drafts that you own and can freely pursue once an existing option lapses.
Say you’ve worked with a producer to refine an optioned script and it doesn’t go forward and the rights go back to you. I understand if you’ve made specific changes together, it sterilizes those drafts. But what about general changes?
For example, you both decide the hero needs a sidekick and create a specific character for the now-sterile draft. Does that mean that even if you create a completely different character, the idea of adding a new character to serve that function is proprietary?
Thanks for the question, Jeffrey! Generally speaking, you should tread really carefully when trying to execute the same notes for different producers. There’s nothing inherently protectable about general concepts like adding a character on upping the conflict or improving the dialogue, but the execution should be completely different.
I’d even go so far as to suggest that you not be the one to propose a fix that involves you retreading ground you’ve already covered on a previous rewrite. You don’t want to be in a situation where you’re believed to be duplicating your previous work, or saying, “Well, I did it this way on an old draft for someone else, and it worked really well so I can just do that here too.”
But as long as you’re sticking to generics, it’s not unheard of for producers or execs to have similar notes… so there’s nothing wrong with addressing the notes you’re being asked to, as long as you’re keeping a sharp division between the execution you perform for each producer.
Hope this helps! And thanks again for writing in!
Why wouldn’t you have your lawyer address this in the option contract by including a clause stating the rights to all derivative works produced under the option revert back to the original copyright holder (screenwriter) upon expiration of the unexercised option? Everything is negotiable in a contract.
Companies are not typically inclined to let a writer keep commissioned work that the company is paying for (just like you wouldn’t hire someone to build you a house and then let the guy keep the house at the end of the project).
It’s not just an industry standard, it’s how the legal concept of work for hire operates. If someone else is paying you to do a job, you don’t get to keep the results and proceeds of the work, or derive independent profit from it. So the chances of a company just going, “Yeah, sure. We’ll pay you to write a script and then keep it when we’re done.” is highly unlikely unless there are highly unusual circumstances at play.
However, I will say that your approach is actually one I often suggest to writers being asked to do free rewrites. If there’s no money being paid, retaining the results and proceeds of the work you’ve done is a great alternative… but the key phrase there is “alternative to being paid.” In that case, your attorney should argue that you will write on spec rather than as a work for hire which therefore allows you to retain the results and proceeds of your work.
Remember that while it’s true that everything in a contract is negotiable, you still have to get the other party to agree to it… and a writer demanding that he both get paid AND keep the rights to the work he’s being paid for is a writer who probably doesn’t close many deals in the first place. 🙂
Hope this clarifies and thank you for taking the time to comment!