Terry and Debe's Official "Back-End" Dealmaking
Checklist!
Yours to post, free!
(Though cash donations and personal checks
will be accepted and are indeed encouraged.)
- Profit participation
- Terry: If it's a feature I can at least look towards
net points (more popularly known as nyet points); if it's a TV
episode I'll at least see residuals. But there are no box office
grosses in new media, no re-runs. So how'm I going to get
something when the Interactive project I've written sees a profit?
Deborah: Because this is still such a new industry, the
typical "back-end" deal structure doesn't exist. One of
the more popular models, however, comes to us from the publishing
industry: advance against royalties. The writer/designer can
expect payment up front in installments (the advance), with some
back-end based on a percentage of sales. If the publisher balks
at paying royalties, an alternative is a "sales bonus",
which equates to extra money based on the number of units sold.
For example, you're paid $40K to write the project, with an
additional bonus every time 5,000 units are sold.
- Screenplay redistribution and "repurposing"
- Terry: Much to the amazement of my writing partner and
myself, when Wing Commander III was released, the entire 400-
page script was also published on a CD-ROM that was part of a
separate "hint book" package that retailed for $19.95.
The hint book itself was largely lifted from our treatment and
screenplay. We never received additional compensation for either
the hint book or accompanying CD-ROM (we received no "written
by..." credit in the hint book, or "from the screenplay
by..." credit). We were never asked for permission to re-use
our words in these arenas. It never even occurred to us to
anticipate the screenplay being published on CD-ROM or in a hint
book, and having this covered in a contract. Moral of the story:
there have never been more venues for redistribution and
repurposing of screenplays, treatments, etc. -- CD-ROM, The Web,
hint books, "Making Of" videos, novelizations, and so on.
Ignore them at your peril.
- Onscreen, packaging, and other credits
- Deborah: You know the saying: "You're only as good
as your last credit." You must make sure your contract
spells out exactly what credit you'll get, where you'll get it,
and how you'll get it. Your best bets are to get credit on screen
and in print. For onscreen credit, do you get your "own
card" (where you're listed all by yourself), or is your name
buried in there somewhere with the project accountant? I once
worked on a project in which I was told that "only the
important people" would have their credits listed in the
credit roll in the beginning of the title, and the writers were
not included in that category. Writers were credited at the end
of the title, with the guy who put the shrinkwrap on the box.
Terry: There's no agreement on what constitutes above-
the-line credits and below-the-line credits. My favorite credits
are only revealed as an "Easter Egg": you have to press
Alt-Shift-6 three times in succession, spin your mouse around, and
click on the taskbar -- that kind of thing.
Deborah: Get credit. Not "special thanks to"
or "words contributed by", but "writer" or
"designer" or "story consultant" -- whatever is
appropriate. Spell it out in the contract. On the box...
Well, that's another story...
Terry: There isn't a star system established. In fact,
most companies seem to have an aversion to actual human names on
the box. It's a software product, not an entertainment product,
in their eyes.
- Deborah: Bottom line, while credits are very well
understood in Hollywood, you have to work to inform Silicon Valley, Multimedia
Gulch, and Silicon Alley that credits are part of the mix...
- Multi-platform compensation
- Terry: A game you've written and/or designed may begin
its life as a CD-ROM for PCs ... but then it may be
"ported" to other platforms. It may become a Nintendo
cartridge, a Sony Playstation CD, or a multi-player Web Site.
When you write a feature film, and it works its way down the
foodchain (becoming available on cable TV, broadcast TV,
videotape, etc.), you're entitled to additional compensation. You
should fight for the same in your contract, and structure the
language to cover "ports" no one's even dreamed of yet.
- Right of first refusal on subsequent projects and
spinoffs
- Deborah: Make sure your contract specifies that if a
sequel is done, you have the right of first refusal to work on the
project in the same capacity. I was once "promised" a
second title in a series, although it wasn't written in my
contract, and two days before the start date I lost the project
because I had an agent, and the producer couldn't deal with the
fact that he had to go negotiate with my agent instead of with me.
His exact words were, "Agents are sharks!" [Hey, don't
swim in the ocean, I say.] I lost the gig... Thinking ahead...if
the Interactive project you worked so hard to write and design
spins off to become a TV show?
Terry: They should come to you. It's still your baby.
- Sequel compensation
- Terry: It's S.O.P. that if your original storyline and
characters spawn sequels, TV shows, and so on, you're going to see
a few more dollars. It oughta be the same on interactive sequels,
updates, add-ons, Websites, etc....
- Repurposing compensation
- Deborah: If you design characters and environments that
become screensavers, adorn mouse pads, turn into clipart,
whatever, wouldn't it be nice to see some additional compensation?
Many companies are taking your content, reselling it, and making
money off of it. The key words here are "your content"...
- Ownership definitions and retention
- Terry: Here's where things get really sticky. In the
feature world, the studio owns all rights to the characters and
storylines you've created. In perpetuity. It sucks. We all know
this. Interactive is a new frontier, and one of the reasons I
personally am attracted to it is because there is a chance to
balance the ownership scales a little. If you're creating an
Interactive or Web project from scratch, I think the retention of
ownership rights to story and characters is something to fight
for. Hard. Elmore Leonard can bring back Maximum Bob anytime he
likes, and yet Doubleday is still happy to publish Elmore and
everybody makes money.
Deborah: A collateral issue is when you've designed a
project and halfway through production, the plug is pulled. Who
owns the project then? If you're the originator, you should be
able to take the project to another software publisher. If you're
"just the writer" on a project and the plug gets pulled,
you have a stipulation in your contract for a kill fee. You need
to get paid for your work.
Deborah: Collect all the check marks, and you're home
free...
Terry: Yeah, in a perfect world... It's why they call
it negotiation...
Deborah: And who's going to do the negotiating?
Agents! Can't live with 'em -- can't shoot 'em.
Terry: Should you get an agent who doesn't know the
difference between a PC and a toaster? Or should you get a 19-
year old computer geek who has trouble reading the backs of cereal
boxes?
Deborah: Or maybe an attorney...or maybe all three...
Terry: Something to kick around...next month...
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