This is a tale with a simple premise. You and a friend decide to collaborate on a screenplay. He’s got a great idea for Godzilla meets Colossus meets Gigantor meets angry mythological Greek from Wrath of the Titans, and you’ve got massive writing chops, as evidenced by the 14 screenplays you’ve got moldering in a box in the back of your closet.
So what do you need to do before you start collaborating? You have agreed on a 50-50 partnership and split of the proceeds, but what do you need to do to commemorate that agreement, other than seal it with a handshake?
There are couple things you could do. You could call an attorney who specializes in representing artists and musicians and have him craft an agreement that calls out the nature of your responsibilities, duties and obligations. Alternatively, you could attempt to draft an agreement yourselves based on what you and your friend think is a fair deal. A third possibility would be to take the WGA approved collaboration form and modify that according to the specifics of your situation. My vote, self-interestedly, would be for you to go see a lawyer. This not only serves to protect your legal rights, but is paradoxically the most cost-effective choice, because if you don’t have a written agreement in place, the future consequences can be devastating.
So what’s in a collaboration agreement? In its simplest form it is a contract that spells out the parties’ relationship, a template which spells out who owns what, and what each of you can do with your creation. Typically, the provisions of the agreement discuss (a) ownership percentages, (b) responsibilities of each collaborator, (c) division of profits, (d) division of expenses, (e) how each party will be credited if the work is produced, (f) what happens if someone withdraws from the project, (g) what happens if there’s a dispute, and (h) licensing and sale rights, including one party’s right to block an assignment of rights.
These are all, of course, the types of things that one would like to know before entering into a relationship, but they’re also eerily reminiscent of the kind of things one sees in prenuptial agreements. And in the artistic world, mentioning the word “agreement” at the start of the creative relationship tends to create the same level of discomfort that murmuring the word “prenup” does at the start of a romantic one. People think they will always be friends, despite the wealth of evidence negating that proposition. For every Captain and Tennille, for every Batman and Robin, there’s a Beatles, a Nirvana, and a Red Hot Chili Peppers throwing off old band members like quarks from a dying universe. The sad truth is, bands break up, writing teams bicker and fall apart, people move on. The dream of undying friendship and never-ending relationships dissolves in a puff of smoke when it confronts the tabloid reality of straying partners, financial problems, disaffection and death. Having a written agreement in place to protect your rights during the inevitable evolution of your relationship is simply the smart thing to do; it prevents headaches, misunderstandings, bad feelings and – most importantly – legal disputes.
Apart from the obvious financial consequences that arise when one doesn’t know how much of a song or project one has rights to, there’s also the very real problem that without a written agreement delineating the parties’ respective rights, no one is going to bid on your project. If your collaborator can kill any deal because he has veto power, or as 50% owner his consent is required, the producers and powers-that-be are simply not going to be interested in meeting with you. You can’t pitch your project, or sell your deal, if you are in the midst of a dispute with your former business partner over who owns your creation. As long as any dispute exists, your ability to move forward and get your project produced is nil. And in the unlikely event you manage to offload it to some unsuspecting publisher or producer, you now risk getting sued not only by your erstwhile partner but also by the production company you just duped into buying your product.
When the band breaks up, it’s the ugliest of ugly divorces. But forewarned is forearmed, and those realists (or cynics) who are smart enough to have a collaboration agreement buried in their files will thank the day they had a premonition of things to come, and chose to have that difficult conversation with their friends, colleagues, collaborators or bandmates. After all, it’s not much of a friendship if the mere mention of putting an agreement into writing is enough to destroy it. So fear not, and have a collaboration agreement signing party.
[And don’t forget to invite the groupees. I mean . . . muses].
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.