Releases and Release Forms

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Question:

I'm a screenwriter. I was hoping you could help me. I've signed a number of release forms in the past that attempt to indemnify the production company when creating similar or identical material to the that of the writer's MATERIAL, but I'm faced with signing a release form that indemnifies the production company when using "PROTECTIBLE MATERIAL." This is the actual clause: Use of material containing elements similar to or identical with protectible property contained in the Material shall not obligate... I understand I'm not your client, but just from an academic stance, does this create a different legal standard or is this just a case of semantics?

 

Answer by Brandon Blake, Entertainment Attorney:

Thanks for your question. Over the years many production companies, studios and television networks have adopted release forms that they ask to be signed before they will consider reviewing scripts, treatments and television pilots. While signing these agreements is not always a bad idea, you do need to consider whether you should be signing a release at all, and if so, whether the release you are signing is overly broad. I will consider three different issues with submission releases: First, why is a release required at all. Second, is there a way to avoid signing a release in some cases. Third, what are the characteristics of a “good” submission release.

In order to understand why a submission release is being requested, you need to temporarily take the view from the position of the studio, network or production company. All types of entertainment companies receive a lot of submissions. The largest entertainment companies are receiving thousands of solicited submissions per year. Solicited materials are scripts, treatments and presentations that have been requested by development executives or that have been submitted by literary agents or trusted entertainment attorneys. There is another ten times more material being sent unsolicited by mail, email, or left at the door or front desk of offices.

This volume of creative material virtually guarantees that some of the submissions will be very similar to other submissions. If the studio or network selects one project and rejects another similar project, the appearance of copyright infringement will be created, even if the two projects were created completely independently. This is one of the reasons that entertainment companies started to request submission releases.

The second reason for the releases is to simply create a way to reduce the workload of development executives. Studios and networks know that maybe 50% of writers will not sign a release so they send them out as a way to weed out submissions. That is not fair to writers, but it is understandable given the volume of material.

From the perspective of a writer, you need to do what you can to avoid signing a submission release. These are not just “boilerplate” documents that can be signed with the assumption that somewhere out there a law exists to protect writers. WGA rules do not apply unless you are a guild member and copyright law will not protect a writer from a submission release, because the copyright law simply requires a signed writing by the author. Once you sign a submission release that becomes a binding agreement.

Generally the two ways to avoid signing a submission release will be to submit the work through a recognized literary agent or an entertainment law firm. The reasoning is that when a third-party has a copy of the work on file, there is less room for misunderstandings about what was sent and when. The studios and networks are not always out to take advantage of writers. They have a real fear of frivolous litigation and some of that risk is reduced when they are getting materials through a third-party they trust.

In my own practice I can say that my clients do not have to sign releases with studios, agencies or production companies. Television networks are probably the most cautious and do sometimes still require them, or sometimes ask for them but then review the project without ever requiring them to be signed.

I have found that even when a writer has met in person with a development executive, such as at a film festival or pitch conference, that typically a submission release will still be required unless the writer submits the materials through our office. That used to surprise me because you would think that this was the ideal case of “solicited” material.

The submission release can take away some of the rights you would have during negotiations. It is harder to press for a fair deal when the studio or network might have the right to independently develop the same project. Although it is rare that a major entertainment company would steal a project outright, submission releases can undermine your bargaining power. That is why I recommend every submission release be reviewed by an entertainment attorney. The excerpt from the above agreement is not long enough to determine whether this is a “good” submission release, although better releases talk about “inadvertent” or “unintentional” copying, versus a wholesale right to do as they please.

Recently I have noticed that some writers have begun to get confused by the difference between a submission release and a non-disclosure agreement. There really is no similarity between these two documents at all. A non-disclosure agreement (NDA) would actually protect the writer from usage of “non-protectible” elements of a script, such as the idea or concept. But needless to say, it is a rare moment when a major studio or network would sign an NDA, which basically functions in the opposite way to a submission release.

As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment attorney first. I have been representing feature film projects and television series for more than 14 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

About the Editor:

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available online.

About the Entertainment Lawyer Q&A: The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.