What Rolled Up Must Come Down

Written by? Created by? Screenplay by? Screen credit can define a writer’s career—in fact, the exact words that rolled up the screen after his/her last project often determines a writer’s next gig and salary. Given the time and high stakes involved in writing for film and television, especially when little compensation is involved, credit becomes one of the most important parts of the contract—perhaps more than any other clause. As a result, the terms are often complicated and heavily negotiated.

The Writers Guild of America (WGA) has had the right to determine screenwriting credit since its first collective bargaining agreement with a Hollywood studio in 1942. The WGA created a Minimum Basic Agreement in part to prevent what was becoming a common trend in Hollywood: studio executives offering writer credits in exchange for favors from company secretaries, relatives, and friends who had little or nothing to do with the project. The WGA agreement is still used by most professional screenwriters to prevent producers or studios from subjectively deciding what type of credit to assign, how the credit will appear on screen, its place in the sequence of credits, and its appearance in ads, publicity materials, and other company displays of credits.

According to the agreement, the production company has to send the WGA and the writer(s) a tentative proposal of the writing credits with a copy of the final script. If the writer disagrees with the proposal, he or she can protest in writing. If the production company and the writer can’t come to an agreement, the WGA serves as an arbitrator and makes a determination. If a writer disagrees with the WGA’s final determination, the writer must challenge it through the courts. However, in most high-profile cases in which writers have challenged screen credits, the courts have agreed with the WGA’s final determination.

One such case occurred during the making of Beverly Hills Cop II (1987). Paramount Pictures hired a screenwriter to draft the script, but after the film was completed, the WGA determined that this writer should share “Screenplay by” credit with another writer, and that a “Story by” credit could go to Eddie Murphy. The original writer then sued the WGA in the California courts, claiming he alone deserved both “Screenplay by” and “Story by” credit. The courts found in favor of the WGA.

Even if the project is not WGA—either because the writer is not a WGA member or the filmmaker’s company is not a WGA signatory (essentially a producer who agrees to abide by WGA rules)—a similar notice and approval requirement (such as the one below) can be inserted into the agreement.

“Before the screen credits for screen authorship are finally determined, the Production Company will send a written notice to each writer who is a substantial contributor to the screenplay. This notice will state the Production Company’s choice of credits on a tentative basis, together with the names of the other substantial contributors and their addresses last known to the Production Company.

If using WGA agreement terms becomes complicated or tedious, a writer can demand that credit be accorded to him/her per the WGA Minimum Basic Agreement, as stated below:

“Producer agrees that the Writer’s credits shall be determined and accorded pursuant to the provisions of the WGA Agreement in effect at the time of such determination.”

All screenwriters should be familiar with the following, often non-negotiable, terms and issues in order to assure that they get the greatest and fairest recognition for their work.

WRITTEN BY: The writer created the story concept and wrote the screenplay.

STORY BY: The writer created the story (i.e., the plot, theme, main characters, etc.).

SCREENPLAY BY: The writer wrote the screenplay based on someone else’s concept.

TELEPLAY BY: Writer wrote the script for a television program based on someone else’s concept.

Typically designated as credit for the creators of television programs, where bonuses and royalties for episodes are involved, and the show’s success will determine if co-creators can become an executive.

ON SCREEN PLACEMENT: Generally, the writer’s screen credit should be placed next to the director’s credit. If the writing credits are in the main titles (i.e. before the film starts), they appear on a title card immediately preceding the card on which the director’s credit appears. If the writing credits appear in the end titles (i.e. before the film ends), they appear immediately following the director’s credit.

PAID ADVERTISING: The WGA generally requires writer credits to appear in advertising and publicity on par with the director and producer credit.

SIZE OF CREDIT: The writer’s credit should be equal in size and type to any other credit.

MERCHANDISE: Credit on merchandising items in connection with the film—such as soundtrack liner notes and/or DVD packaging—should bear the writer’s credit.

ADDITIONAL WRITERS: It is not uncommon for a number of different writers to revise a script. The writer’s agreement should limit the number of individual writers who may receive credit to a maximum of two or three. This is especially important in the event that the writer is entitled to a bonus based on a sole “Screenplay by,” “Teleplay by,” and/or “Created by” credit.

STUDIO or PRODUCTION EXECUTIVES: In order to preempt the practice or temptation of any abuse of screenplay credits, production executives are usually excluded from screenplay credit unless the executives wrote the screenplay exclusively by themselves.

MOSTED FAVORED NATIONS: If the agreement is not subject to WGA rules, the writer could use a “most favored nations” clause stipulating that if another individual or company involved with the project (i.e., writer, director, producer) gets a more favorable credit term in their agreement (larger, bolder, longer on-screen duration, main title, end title, etc.), then the writer will automatically be entitled to those same credit terms.

INJUNCTIVE RELIEF: An injunction by a writer against a production company or studio could halt production, distribution and/or exhibition of the film. To avoid that from happening due to a producer’s inadvertent failure to grant the writer his or her credit as stipulated in the agreement, producers should include a clause with language such as:

“No casual or inadvertent failure by the Producer to comply with the terms of this section or any other clause in connection with Writer’s credit herein stipulated, shall be deemed a breach of contract, or entitle Writer to injunctive relief.”

More information at www.wga.org.

About :

FERNANDO RAMIREZ, ESQ. is an attorney in private practice in New York City, where he lives with his wife and 12-year-old son/aspiring doc-maker. He graduated from Fordham University and earned his law degree from Brooklyn Law School. His work involves transactional entertainment law. He drafts, reviews, and negotiates industry agreements, and he advises on copyright, trademark, contracts, privacy, and business formation matters for independent filmmakers, executive producers, media personalities, songwriters, personal managers, independent labels, and nonprofit film organizations.