For many screenwriters, the hardest thing about getting started is finding an agent to rep them. Until that lucky day occurs, they are forced to try to make their own submissions to producers and production companies. However, for writers not represented by agents, the producer will often require the writer to sign a release form as a condition to accepting the submission. And these releases can have far reaching legal consequences. So before you sign one of these agreements, you better understand what you’re signing, and what the potential implications are if infringement occurs.
As an example, I’m going to reprint a submission release that a client of mine was asked to sign, and explain the legal implications of the various clauses (NOTE: I’ve removed some of the more uninteresting provisions of the agreement for space).
Dear Producer:
I am submitting to you herewith and under the terms and conditions stated herein the following material (hereinafter referred to as the “Material”):
I acknowledge that because of your position in the entertainment industry you receive numerous solicited and unsolicited submissions of ideas, formats, stories, suggestions and the like, and that many such submissions heretofore or hereafter received by you are similar to or identical to those developed by you or your employees or to those otherwise available to you. Further, I acknowledge that you have adopted the policy, with respect to unsolicited submission of material, of refusing to accept, consider or review such material unless the person submitting such material has signed an agreement in form substantially the same as this. Accordingly, I acknowledge that you would refuse to accept, consider or otherwise review the Material in the absence of my acceptance of each and all provisions of this agreement (“Agreement”). I acknowledge that no fiduciary or confidential relationship now exists between you and me, and I further acknowledge that no such relationships are established between you and me by reason of this Agreement or by reason of my submission to you of the Material.
This section is used to establish that you are agreeing that there is no confidential relationship between you and Producer, so you can’t use a “Breach of Confidential Relationship” as a possible cause of action if your script is stolen.
In consideration of your receipt of the Material, I hereby agree to execute this Agreement. I acknowledge that you have no obligations to me except as set forth in this Agreement, and that no other obligations exist or shall exist or shall be deemed to exist. I further acknowledge that at this time you have no intent to compensate me in anyway and I have no expectation of receiving any compensation. I acknowledge that you are under no obligation to review or use or negotiate with me with respect to the Material in any manner.
Notice the underlined language. You are agreeing that you have no expectation of being paid for your script. This is to stop you from suing later on and claiming that they stole your idea. Since there is no expectation of being paid on your part, you couldn’t have been damaged . . . Right?
I acknowledge that the Material is submitted by me voluntarily and not in confidence, and that no confidential relationship is intended or created between us by reason of the submission of the Material. I agree that nothing contained in this Agreement nor the fact of my submission of the Material to you shall be deemed to place you in a position different from that of, or to cause you to have any fewer rights than, a member of the general public to whom I have not submitted the Material.
Again, this means that you cannot claim that there was any implied agreement with Producer just because he accepted your script.
I acknowledge that materials (or portions thereof) developed, created, acquired, licensed or otherwise obtained by you, or third party materials to which you have had access, may be similar or identical to the Material (or portions thereof) in theme, idea, plot, format and/or other respects. I agree that I will not be entitled to any compensation because of the use of any such similar or identical material. I acknowledge that materials developed by you may contain similarities to the Material. I hereby waive, and agree that I will never make, any claim or demand or bring any action against you in connection with the use of the Material. In this connection, I hereby release and absolutely and forever discharge you of and from any and all claims, damages, legal fees, costs, expenses, debts, actions and causes of action of every kind and nature whatsoever, whether now known or unknown, suspected or unsuspected, asserted or unasserted, which I now have, or at any time heretofore ever had or which I may have in the future, against you which in any way arise out of or in connection with the Material.
Here’s the big one. In this section, you agree that you will never, ever, ever sue Producer if he steals your script. And, if you try to do so, he will simply show the court the agreement where you agreed to never sue him with regard to the use of your script (aka “the Material”), and the court will throw your suit out.
I hereby acknowledge that I am familiar with Section 1542 of the Civil Code of the State of California, which section reads as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
I hereby waive and relinquish any and all rights and benefits which I have or may have under Section 1542 of the Civil Code to the full extent that I lawfully may waive and relinquish any and all such rights and benefits.
A waiver of Section 1542 is fairly common in releases, it means that you are waiving not only the things you know about but even as to claims that you don’t know about at the time of signing. Again, this is to make it very hard for you to file a claim later.
Each party hereby waives any and all rights and benefits which he or it might otherwise have or be entitled to under the laws of California to litigate any dispute in court, it being the intention of the parties to arbitrate, according to the provisions hereof, all such disputes, as the sole and exclusive means to resolve any such disputes. Any such dispute may be submitted to arbitration in the County of Los Angeles, State of California, in accordance with the rules and regulations of the American Arbitration Association then in effect, provided that said arbitration shall be heard before a single arbitrator, selected pursuant to said rules and regulations. Said arbitrator shall be well acquainted with the entertainment business in the County of Los Angeles. The arbitrator’s decision shall be controlled by the terms and conditions of this Agreement and shall be final and binding. Judgment upon the award of the arbitrator may be enforced in any court of competent jurisdiction. The prevailing party shall be entitled to recover from the losing party, in addition to all other relief to which it may be entitled, its costs and expenses, including, without limitation, actual attorneys’ fees and the costs of expert witnesses. In the event of any dispute concerning this Agreement, my sole remedy shall be to seek actual damages and in no event shall I be entitled to seek injunctive or other equitable relief.
In this section, you waive any right to sue in court, and must instead bring an arbitration action. While arbitration has its advantages in some circumstances, here, the main disadvantage to you is the initial filing fee. Whereas the filing fee for a copyright infringement case in U.S. District Court is currently $350, the initial filing fee for AAA arbitration is based on the amount of the claim. So if your claim is between $150,000 and $300,000, the initial filing fee is $2,800, from $300,000 to $500,000, the filing fee is $4,350, from $500,000 to $1,000,000, the filing fee is $6,200, and from $1,000,000 to $5,000,000, the filing fee is $8,200. And this, of course, does not include the cost of the arbitrator, which typically runs from $5,000 to $10,000 per day.
The other horrible thing about this section is the waiver of injunctive relief. In a copyright infringement lawsuit, the threat of an injunction gives the plaintiff a heavy remedy if they win, because if an injunction is granted, the studio makes no more money from the film. This can lead to a high payout. But if all you can receive is value of your screenplay, that caps damages at $100,000 or less.
I hereby state that I have read and understand this Agreement; that no oral representations of any kind have been made to me; that there are no prior or contemporaneous oral agreements in effect between us pertaining to the Material; and that this Agreement states our entire understanding.
This provision (called an “integration clause”) means that the only thing in the agreement is what is on the paper. Even if the Producer told you repeatedly on the phone that he would treat you right and pay you for your script if he used it, by including this provision it makes any such oral promises unenforceable.
Now, I can hear you asking, if these releases are so bad, should I ever sign one? And I would say that there are a few situations where you might be willing to sign a release like this. The first is when you feel that you have completely shopped out your screenplay and don’t think you’ll have any more conventional means of getting your screenplay looked at. If the alternative to not signing the release is that the screenplay just sits in the bottom drawer of your desk for eternity, then sure, what the hell. It’s a long shot, but it’s better than nothing.
The other alternative is when you know (from doing your research) that the Producer is (somewhat) trustworthy, and you think that it’s worth the risk. But otherwise, I would really think long and hard before signing one of these releases because you are signing your script’s life away.