Q:  Here's a quote from an unsolicited submission agreement I was sent.  "I hereby grant to you the non-exclusive right to use any or all of the Material for any and all purposes, in perpetuity."  Am I missing something or do I understand this correctly in saying that I am basically giving up all my rights to my writing if I submit it? 

A:  An unsolicited submission agreement like you were sent is a misnomer.  It should be called an unsolicited gift agreement.  It's a gift agreement, because for the privilege of being read, you actually grant to the reader the rights to your material.  Imagine this: you're trying to sell your house, and a potential buyer who hasn't even seen the house yet makes you an offer - the buyer will look at the house, and in exchange the buyer will own it just for looking.  No word in the English language captures the colossal absurdity of that - you'd have to invent one.

Of course, a script or other intellectual property is not a house.  And the differences explain, but do not necessarily justify, unsolicited "gift" agreements.  The main difference is that studios and production companies are legitimately concerned about unsolicited submissions that may lead to lawsuits.  Studios have hundreds of projects in development.  Many of them are very similar.  By accepting an unsolicited submission that may happen to be similar to another project a studio already has or will have in the future, the studio opens itself up to a legal claim by the author of the unsolicited submission that the studio stole (or infringed the copyright of) the author's unsolicited submission.  Studios and production companies protect themselves by demanding that unsolicited "gift" agreements are signed before unsolicited materials are read. 

While an unsolicited "gift" agreement certainly protects studios, it does it in a way that seems incredible.  The agreement actually grants studios the right to use the material!  For example, let's say you submit to a studio an unsolicited script about an artist who fakes his death to increase the price of his art, the studio may go ahead and make the movie but will never pay you a cent!  

Now, to be precise, the grant of rights is non-exclusive.  This means that you can also make a movie based on your script (what a relief).  You can also sell the script to another studio.  And the first studio who has non-exclusive rights would be very hesitant to make the movie based on your script, because another studio may also make a movie based on your script.  Imagine that you submit your script to all studios and sign unsolicited "gift" agreements with all of them.  Even though all of them have a non-exclusive right to make the movie, none of them will probably do it, because in almost all cases, financiers require exclusive rights.

So while it's unlikely that because of the unsolicited "gift" agreement a studio will actually make a movie based on your script, the studio may certainly use for free your cool high concept idea and have another writer execute the idea in a different manner.  There are dozens of movies based on essentially the same idea.  Armageddon and Deep Impact are obvious examples.  The exclusivity of an idea is not as important as the exclusivity of the script (i.e., the execution of the idea).

Other parts of the agreement that was sent to you (not quoted above) went on to say that if the part of your material protected by copyright is used, then you will receive "reasonable" compensation which may be less than - but will not be more than - the minimum WGA compensation that would be applicable if a studio hired you to write your material.  Copyright doesn't protect ideas, only the expression of ideas.  So if a studio used just the ideas in your script, not the script itself (as is more likely to happen), you will not be entitled to any compensation under the "gift" agreement.  But if your script were used verbatim (or close to it), you would be entitled to that "reasonable" compensation.

Finally, while the grant of rights is non-exclusive - to use a house analogy again, you're not transferring the ownership of your house, you simply allow someone to live in it for free, forever - and while you can sell your script to others, your ability to sell it to others is diminished.  Nobody will buy your script unless you can sell exclusive rights.  Once you sign an unsolicited "gift" agreement, technically, you no longer own exclusive rights, and therefore you're no longer able to sell exclusive rights. 

Bottom line: find an agent or a manager to submit your materials.  If you can't find an agent, get a manager.  If you can't find a manager, get an agent.  They're a dime a dozen (and with the dollar sliding, will soon be nine cents a dozen).  For each writer in LA, there are 1.5 managers.  A directory of managers is thicker than a phone book.  Few are good, but that's not the point.  You just want someone to submit the script for you so you don't have to sign an unsolicited "gift" agreement.

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LEGAL EASE is FIND's weekly advice column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here. If you have a question for our lawyers, Jesse and Matt, please send them to Lindsay at LPond@FilmIndependent.org

© 2008 Greenberg Glusker Fields Claman & Machtinger LLP (“Greenberg Glusker”). All rights reserved. This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. Greenberg Glusker does not represent or warrant that this Blog contains information that is true or accurate in all respects or that is the most current or complete information on the subject matter covered.

Matt Galsor and Jesse Saivar are attorneys in the entertainment transactional department of Greenberg Glusker Fields Claman & Machtinger LLP.