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The never-ending story: Litigating scripts between co-writers

Imagine you and your friend have a great idea for the next billion-dollar blockbuster. You might have some of the key plot points and your friend may be an expert at character development and dialogue. You start thinking about putting your ideas on paper in the hopes of writing the next Hollywood blockbuster.

Ideally, you and your partner will write the movie that makes you successful beyond your wildest dreams. That would certainly be my hope; my clients' successes are my priority. In reality, however, unanticipated and intervening forces can turn your plans on their head.

No matter how close you and your co-writer are to one another, and no matter how many times you have worked together in the past, there is always the potential for a falling out, creative differences or some other force to interfere with the relationship and the project. Even a minor disagreement has the potential to cause a lasting riff if left unaddressed.

One of the first casualties of such an unfortunate event is often the project itself, in large part because many artistic collaborators do not understand the importance of establishing formal agreements before the creative juices start flowing. You want to take the necessary steps to make sure that the project remains viable and headed for success even if your personal relationship with your collaborator becomes strained.

In some instances, co-writers, particularly those with close, existing relationships, are wary of even considering the possibility that the relationship may sour or the project may falter over personal issues. It's understandable. We always want to think positively about project's we're excited to get off the ground.

From a purely economic standpoint, however, without exception it will be cheaper for you and your partner to agree on some basic terms about co-authorship and joint ownership before you start writing. Once there is a script, if you and your partner reach an impasse and each of you digs in your heels resentfully, which is a normal human response, the project can be doomed to eternal limbo.

Once you and your creative partner are in a dispute, legal fees will skyrocket as you try to salvage whatever you can from the broken relationship, and more often than not, parties exhaust their legal budget well before they ever reach a settlement. And if litigation were to be necessary, legal fees could jump to tens of thousands or hundreds of thousands of dollars, particularly if both sides engage aggressive counsel.

Invariably, it is always cheaper to sign a co-authorship and/or joint-ownership agreement prior to starting the project. Below are two hypothetical case studies that demonstrate why reaching agreement before starting a project will mitigate risks of losing the project and likely save you a large amount of money in the long run.

The "worry about it later" approach

Let's imagine a situation where you and your writing partner sort of drift apart from one another. People change over time. The friendship and creative partnership may have simply run its course. There may have been a romantic relationship that came to an unpleasant end and is too difficult to revisit. Things may have hit a wall, and one of you may have moved on to a new project.

You haven't given a single thought to this project in months or years. Suddenly, while checking Twitter on your phone at lunch, you see something that seems familiar. You read about a movie being made that sounds exactly like the script you had been working on with your former partner.

While this should be an exciting time for you, you are confused because you never agreed to any sort of deal with anyone. When you consult your partner, they say that they had sole ownership of the screenplay, and did not need to get your permission before accepting the offer. Even worse, they state that since this is their sole creation, they do not have to provide you with compensation from the sale either.

Let's say that you want to see this project continue, despite your differences with your writing partner. You contact an attorney to see what sort of options you have in this situation. The first question that an attorney will ask you is if you had a joint authorship or ownership agreement. The answer, of course, is no, which means your problems are just beginning.

One of two things will then happen. First, you will have to try to negotiate a joint ownership agreement with your partner after-the-fact. This is a legal document that will explain who owns what, and what sort of control each party will have over the product. Your attorney may attempt to contact the other side in sternly worded letters, asserting equal ownership of the screenplay.

Not surprisingly, your efforts to negotiate a co-ownership agreement will probably be met with indifference from your co-writer. You will have spent a lot of money leading up to this point, and are no closer to solving your actual problem.

Inevitably, this lack of communication will lead to the second option - filing a lawsuit to gain an ownership interests in the script. You might start off with threats of litigation, which, if you are lucky, will finally get your partner to the bargaining table. Maybe then you will be able to talk about the particular issues of concern and come up with a workable agreement that leaves both of you bitter, upset and stressed out. But, more likely than not, you will have to actually file the lawsuit to make progress.

Once litigation becomes a reality, you will see your costs increase dramatically. You will have to pay your attorney an hourly rate to draft a complaint, research the law and develop a strategy that gives you the best chance of success. You can a lot of money each and every day that your case is at trial.

It can take a few years before you get results - and unfortunately, there is no guarantee of success. Your partner could prevail at trial, leaving you without any opportunity to recover compensation for your hard work. They may be named as the sole owner of the work, and you are going to be left to your next project, which you can only hope will be a more pleasant and rewarding experience.

The "better safe than sorry" approach

Again, let's walk through a scenario where you take the time to address co-ownership before you even start writing. Once you decide to start a new project, you and your partner consult an attorney. You tell the attorney about the project, what you hope to do with the proceeds, and the ultimate goals of the creative partnership.

The attorney will help you devise a plan to permit both partners to contribute and be fairly compensated for those contributions. You will both be allowed to state your concerns, and the attorney can help both of you get on the same page.

Additionally, the attorney will also be able to help you develop a contingency plan in the event an unexpected life event occurs. For example, your partner may decide that he or she no longer wants to write together, or one of you suffers a serious illness and you need to take time away from the project for treatment. If anything happens, you will have a document that clearly states the ownership interests, which is extremely important if you find yourself in a dispute over control of the screenplay.

This may not be the easiest thing to bring up with a new writing partner. You might worry that the insistence on a joint ownership agreement might cause problems between you and your partner, but, you are doing yourselves a favor by taking this time at the beginning of a project. A joint authorship or joint ownership agreement may take an attorney a couple hours to draft, but it can save you an incredible amount of time, money and frustration if things end up not working out. 

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