Kate McCullagh reveals the pitfalls and disputes behind securing a film screenwriting credit.
You write or contribute to a screenplay; a film is made; your name appears on the credits. Sounds like a simple story, but it’s one that doesn’t always end happily. One of the crueller realities of screenwriting is how hard it can be for a writer to get that all-important acknowledgement of a credit. There are frequent disputes.
In legal terms, a credit can be a complex concept, caught in a tug of war between moral rights, contractual rights and the jurisdiction of writers’ guilds.
The moral right to be identified as an author of a screenplay under English law is usually overridden by the standard film industry requirement to waive it. Writers agree to this on the basis that they have a contractually agreed credit.
In the UK, screenwriting agreements usually state that they are not subject to the provisions of any guild agreement, other than in respect of credits. The credit clause will often assert that credit will be given in accordance with the provisions of the WGGB Screenwriting Credits Agreement, which agreement will also apply in the event of any dispute; or a specific credit may be agreed.
This sounds straightforward, but complications can arise when there is more than one writer on a project, or if a writer/director or a director re-writes the script. Plus, there can be jurisdictional complexities.
Take the following scenario: a writer/director is commissioned by a British producer to re-write a screenplay originally drafted by a writer whose agreement was subject to the jurisdiction of the Writer’s Guild of America (WGA). The project did not go ahead with its initial US financier, and the producer re-develops with a new financier, acquiring the rights in that first screenplay from the original financier.
In acquiring these rights the producer will have to sign up to an Assumption Agreement with the WGA, agreeing to comply with relevant obligations of the WGA Basic Agreement.
By operation of WGA rules, if the second writer is also the director of the film, at production, each writer’s credit entitlement will automatically be referred to the WGA for credit arbitration. The producer must comply with the WGA’s process, irrespective of any ‘no guild’ or WGGB provision in the second writer’s agreement. If there are two different guilds in the mix, the jurisdiction of the first writer’s agreement will generally trump that of the second writer’s agreement.
In order to receive a shared screenwriting credit, the writer/director needs to have contributed more than 50% of the screenplay in the WGA’s view, in accordance with designated script components: dramatic construction; original and different scenes; characterization or character relationships; and dialogue.
By contrast, if the writer is not the director and is solely engaged as a screenwriter, they only need to show a contribution of more than 33%. The decision will be made by three anonymous arbitrators.
Breaking a script down into percentages is no easy task. Since the first writer may well have contributed much of the ‘original story’, it may be harder for the second writer to show their percentage of contribution, which may lie in more subtle and nuanced but powerful additions.
While WGA credit guidelines protect screenwriters from having their credit diluted when a director may only polish or tweak a script before production, they struggle to accommodate writer/directors who may do considerably more, perhaps substantially re-writing a project over a number of years.
A negative credit arbitration in this scenario is troublesome for a producer. Even if the second writer’s agreement states ‘no guild’, or refers disputes to the WGGB, the producer will be bound by the Assumption Agreement to comply with the WGA ruling, pushing the producer into breach of its screenwriting agreement with the second writer.
The WGA could bring proceedings to injunct a film that breaches the terms of its Basic Agreement. A screenwriter, by contrast, will usually have waived their right to injunct the film. Inevitably, the producer is more likely to breach agreement with the writer, where the only risk is damages, than with the WGA and risk the film being injuncted, as well as damages.
A writer who loses a credit determination will not be entitled to claim credit anywhere for their work, most painfully perhaps in the case of nominations and awards. From a financial perspective, they will not be entitled to a production bonus paid on principal photography in the event of sole or even shared credit, or their full contingent compensation promised under their screenwriting agreement.
Screenwriters’ representatives must consider the chain of title to a project carefully before their client boards a project as a subsequent writer, and in particular check if there is any requirement for the Producer to comply with the WGA. Producers should manage credits diligently, to avoid offering credits that they cannot guarantee and prevent disputes from developing, which can have damaging and expensive consequences.
Kate McCullagh is a specialist in media and entertainment at London law firm Harbottle & Lewis