General Information About Contracts

Introduction
What is a Contract?
Do All Contracts Have To Be In Writing?
Enforceability
Typical Contractual Terms
Disputes
Common Sense Advice About Contracts
Negotiating Contracts

Introduction

How a writer is engaged on a project is typically determined by a contract.

In New Zealand, unlike other screen industries, there are no minimum agreements to provide a bottom line of rates and conditions for engaging writers. Because of this it is vital that writers ensure their contracts are comprehensive and sufficiently administer the relationship between them and the producer.

The Guild provides various model agreements and contract materials – these are available free of charge to members.

What Is A Contract?

A contract is a legally enforceable agreement made between individuals or entities. For a contract to exist there needs to be three distinct features:

you make someone an offer
they accept it; and
you promise to give something - usually money - in return for what you're getting. The legal term for this promise is "consideration".

Do All Contracts Have To Be In Writing?

A verbal contract isn't worth the paper it's written on. Samuel Goldwyn

Although contracts don’t need to be in writing any formal agreement should be put into writing.

It provides accurate, written evidence of the deal – if things go wrong this will help resolve disputes.
It forces the parties to consider the importance of the deal and their commitments and take time to consider all the implications. This can help avoid problems later.
Some agreements have to be in writing – especially contracts relating to land, mortgages and guarantees.

Enforceability

Although a contract may have the elements of offer, acceptance and consideration it may not be enforceable because of some other issue.

Situations, that might affect the enforceability of a contract, include:

The lack of capacity of one of the parties to make the contract (e.g. where a contract is made with a child).
When a genuine mistake is made about the nature of the contract.
Where a party to the contract had made a false representation that induced the contract.
Where one party unjustly forced the other to enter into the contract – duress, undue influence.
Impossibility of performance (eg. you hire someone to paint your house and it burns down).
Unconscionability – where something literally ‘shocks the court’ (e.g. selling thousands of dollars of dance lessons to an invalid 95 year old.

Typical Contractual Terms

Party/Parties – the people entering into the agreement. Can you contract with yourself? Yes, as long as you are two legal entities (e.g. a producer and a production company).
Term/Duration/Timeframe – how long the contract lasts.
Clause/Provision/Paragraph/Term – the parts that explain the deal in the contract – includes definitions of words used in the contract, a description of what both sides intend to do in the contract.
Dispute Provisions – clauses that determine how problems will be dealt with.
Amendment/Addendum – something added to the contract after you’ve signed. It only has effect if both parties agree to it.

Disputes

Disputes are often solved through mediation (the parties discuss the problem with a mediator and

come up with an agreed solution), arbitration (the parties submit their problems to an arbiter who makes a decision) or by a court (the parties argue their case in front of a judge).

Any decision on breaches will depend on the nature of the disagreement and the remedies sought. For example, the wronged party may be paid compensation for the loss suffered or the defaulting party may be ordered to complete their obligations under the agreement.

Common Sense Advice About Contracts

Always read the entire contract.
Never sign unless you understand what you are signing. Ask the other side to explain terms. If they say ‘don’t worry about that’ a good answer is ‘you won’t mind if I cross out that clause then’.
Never rush to sign because you are under pressure from the other side/are getting ‘the deal of a lifetime’/are going to miss out on the job if you don’t sign on the spot.
Always fill in the blanks where there are blanks on form agreements or cross out at least all but one of either/or clauses.

Negotiating Contracts

Negotiation is not a mystery. It’s a skill that can be learned. The Guild has prepared a guide that explains some of the basics of making a deal.

Download A Guide to Negotiating Contracts

What I’ve Learned About Contracts

If I learn nothing more from this year, it's that contracts are a sign of how serious things are. (To those of you for whom this is, like, so obvious, what can I say? I am - or was - an idealist.)

So. The first thing the Writers Guild told me when I joined three years ago? Don't work without a contract.

And what've I done in that time? I've worked in good faith. It's gone like this: the terms of the contract are verbally agreed in the early days; writing commences whilst a draft contract is bounced around; the script is finished; a contract is agreed and signed; and throughout, money changes hands. In the end, someone has themselves a script, and I was paid to write it.

Sure, I've had a few projects explode in my face, some of which has provided fodder for my writing. But for the most part, I'm a trusting soul and I like to give the benefit of the doubt. This doesn't mean I've provided all the work to date with the copyright already assigned. I try to be reasonable and flexible; sometimes this has been interpreted as being easy.

As I shift towards projects with 'real' money, what I've noticed is that the expectations and the contractual/political manoeuvring move up a level. Besides my writing having to be more than professional-looking, each gig is a potential career-maker or -breaker (or -extend-just-a-little-longer). The expectation as a writer I can deal with. But the contract shenanigans... oi vey.

All that stuff that was verbally agreed up front? Worth the paper it was written on. All the work that's been done in good faith? Taken for granted and/or leverage to get you to continue to work in good faith and/or a very possible waste of your time.

The earlier that contract is signed, the sooner everyone knows how to behave.

Negotiate and sign that sucker now. Work long. And prosper.

D F Mamea