AGREEMENT dated as of_,by and among ROY FRUMKES ("Frumkes"), (address),
ROCCO SIMONELLI ("Simonelli"), (address), and BILL CHEPIL ("Chepil"), (address).
1.1 The parties hereto are collaborating in the writing of a book (the "Book") and screenplay (the "Screenplay") based upon autobiographical, anecdotal and other nonfiction materials (the "Materials") furnished by Chepil pertaining to Chepil's experiences as a New York City police officer.
1.2 Subject to Paragraph 1.3 of this Agreement, the parties intend to negotiate and enter into one or more agreements for the publication and exploitation of the Book and rights allied, ancillary and subsidiary thereto (each such agreement is called a "Publishing Agreement") and/or for the development, production and exploitation of the Screenplay and rights allied, ancillary and subsidiary thereto (each such agreement is referred to herein as a "Production Agreement").
1.3 Frumkes shall have the sole right to negotiate Publishing Agreements and Production Agreements. Frumkes shall keep Simonelli and Chepil fully informed of the progress of all such negotiations. No Publishing Agreement or Production
Agreement shall be valid unless and until approved and signed by all of the parties. [This was a vital clause, which, if you think about it, saves mucho potential infighting down the road. I'm the business negotiator, but they get veto rights on any deals I've put into place. Fair enough.]
2.1 Chepil shall not use or exploit or authorize or permit the use or exploitation in any manner or medium of any materials used in the Book or Screenplay or in any work or production based upon or derived from the Book or Screenplay ("Production") without the prior written consent of Frumkes and Simonelli. Notwithstanding the foregoing, nothing herein shall be deemed to limit Chepil's right to use or authorize or permit the use other than in the Book or Screenplay of Chepil's physical description, date and place of birth, years of employment by the New York Police Department and such other similar autobiographical facts, the use of which will not be likely to diminish the unique appeal of, or interfere with the market for, the Book, Screenplay or Production. [You can see the necessity for this. Word of the project gets out . . . other entrepreneurs decide to do something similar . . . Bill gets involved with them . . . a lot of our valuable time goes down the toilet. Not that Roc and I thought there was the remotest chance that Bill would do something like that, but it's your lawyer's job to hatch the worst-case scenario, and then prevent it from ever happening. The following clauses clarify the situation even further.]
2.2 If a first draft of either the Book or the Screenplay is completed, and if Chepil wishes at any time thereafter to write, collaborate on, or cause to be written a book, screenplay, story, treatment, format, teleplay, radio play, or stage play based upon or derived from elements of Materials contained in the Book or Screenplay, including, without limitation, a sequel or remake ("New Work"), then Chepil shall so notify Frumkes and Simonelli and will negotiate exclusively and in good faith with Frumkes and Simonelli for a period of thirty (30) days for Frumkes and Simonelli to write or to collaborate with Chepil in writing such New Work. If the parties are unable to negotiate such an agreement within such thirty (30)-day period, Chepil shall have the right to write, collaborate on, or cause to be written such New Work, subject to the following:
2.2.1 If Chepil proposes in good faith to enter into an agreement with a third party for such third party to collaborate with Chepil on or to write a New Work, Chepil will give notice to Frumkes and Simonelli of the financial terms and conditions of such offer.
2.2.2 Frumkes and Simonelli shall have a period of thirty (30) days following receipt of such notice within which to notify Chepil of their election to accept such offer upon the same financial terms and conditions set forth in such notice. Upon Frumkes's and Simonelli's notification to Chepil of such election, the parties shall immediately be deemed to have entered into an agreement upon such financial terms. If either Frumkes or Simonelli does not wish to accept such offer, the other alone shall have the same right to accept such offer as set forth above.
2.2.3 If Frumkes and Simonelli both fail to accept such offer as aforesaid, Chepil may enter into the proposed agreement with such third party upon the same financial terms specified in said notice. In the event Chepil does not enter into the proposed agreement of which Frumkes and Simonelli have been given notice and/or if Chepil proposes thereafter to write, collaborate on or cause to be written a New Work, the same procedure set forth above shall be followed in each case.
Chepil hereby consents to the use of the materials and of Chepil's name, likeness and biographical materials in the Book, Screenplay and Production, and in the advertising, promotion and publicizing of any of them.
The copyright in the Book and Screenplay shall be secured and held jointly by the parties.
5.1 Unless otherwise stated in this Agreement, all assets, claims, income, rights, profits, fees, receipts, and returns of whatever kind (collectively, "Benefits") derived by the parties hereto from the exploitation of the Book and Screenplay and, subject to Paragraph 5.2 hereof, any costs, expenses or losses, shall be divided by the parties as follows:
5.1.1 All royalties paid to the parties pursuant to a Publishing Agreement after the recoupment of any advances paid pursuant to such Agreement (except such royalties paid with respect to a disposition of the right to produce an audiovisual work based upon or derived from the Book, which shall be divided pursuant to Paragraph 5.1.2 hereof) shall be payable one-half (1/2) to Chepil, one-quarter (1/4) to Frumkes and one-quarter (1/4) to Simonelli.
5.1.2 All other Benefits derived by the parties from the exploitation of the Book and Screenplay, including, without limitation, any advances paid pursuant to a Publishing Agreement, shall be payable one-third (1/3) to Chepil, one-third (1/3) to Frumkes and one-third (1/3) to Simonelli.
6.1 In all Publishing Agreements or otherwise in connection with the exploitation of the Book, the parties shall use their best efforts to obtain provisions providing that the parties shall receive appropriate credit as co-authors of the Book.
6.2 In all Production Agreements or otherwise in connection with Productions based upon materials written by the parties, the parties shall use their best efforts to obtain provisions providing that the parties shall receive credit in substantially the following form (or such other form as the parties may mutually agree): Written by Bill Chepil, Roy Frumkes and Rocco Simonelli.
6.3 All credits to be given to the parties shall be of equal size, prominence and style of type and in no event shall one name appear without the others.
The "Term" of this Agreement shall commence on the date set forth above and continue in perpetuity. In the event of the death of any of the parties hereto during the Term, the surviving party or parties shall have the right to act generally with regard to all artistic matters relating to the Book and Screenplay, as though he or they were the sole author or authors thereof, except that the provisions of Paragraph 6 hereof shall survive the death of a party hereto. The personal representative^) of a deceased party shall receive his or her decedent's share of the Benefits, as provided in Paragraph 5.1. [In the case of a subsequent collaboration with a former Liberian student of ours named Hawa Stovall, who returned to her country and became a kind of national hero during a bloody civil war, the Agreement had a time limit. We were unable to get the project off the ground within the time allotted, and Hawa allowed us to extend it for another several years for free. Keep in mind that time limits come creeping up on you faster than you would have imagined.]
The portions reproduced here were written in accordance with New York State law. Different states may call for modifications in language and even in the content of the agreement. Be sure to have an entertainment lawyer in whichever state you reside look the agreement over, even if you use this as a template and create the agreement yourself.
So Roc and I became joined at the hip . . . aesthetically and busi-nesswise. All my previous scripts suddenly became coauthored by him as part of the deal, whether he worked on them or not, and vice versa. It was an odd experience to get my mind around. I'd written The Substitute, for instance, before our partnership began. He read it and proclaimed: "This will not only make a great Hollywood film, it's a franchise! However," he added, "the ending's gotta go. The protagonist has to live in the end, go on to another school. And it's gotta be trimmed by thirty or forty pages; Hollywood won't do a samurai epic . . ."
"Oh, yeah . . .?" I responded sourly, "Why don't you just fix it yourself and don't show it to me." He did, and the script that went out to the coast had my ending, followed by a blank page save for one tiny word in the middle—"or"—followed by his ending. Later we heard that studio people were tearing my ending out of the script before passing it along to their superiors. The screenplay sold, became a franchise, and bought us a modicum of independence, so how miffed could I be that the project existed before we signed the agreement.
And it works the other way, as well. The Sweet Life is really Rocco's script, though it bears both our names. It's about his life, he did it in between our "paying" gigs, and I served as editorial advisor on it rather than actually contributing to the text. It all balances out. But the agreement makes it painless.
And so our career went. The success of The Substitute brought us in contact with all the needy people out there at the studios. But need us though they did, and provide work though they did, they just had to put in their two cents to justify their worth, or keep their jobs, and our work mutated and diminished before our eyes. The checks were good, but not as good for the soul as the interference was bad for it.
This was particularly painful for Roc. All this time he kept a mantra going. Like a window wiper set on ten-second intervals, every so often it would crop up: that he wished he could see just one of our scripts reach the screen uncorrupted by studio vermin. He thought one way to do this was to direct, and I explored raising money for him to direct one of our short installments for a proposed anthology feature called New York Primeval. But money just wasn't forthcoming for a short. It's too obvious that under no circumstances could money invested in that kind of project yield profits: where could it play other than on a cable station such as the Independent Film Channel, or the Sundance channel, which aren't big paying gigs. Certainly it could be entered into film festivals, but festival cash prizes aren't substantial for shorts. It could be bunched with other shorts on a DVD, but then your share of the profits would be small. So, you can't use profitability as a selling point to potential investors for something of this nature. To first-time filmmakers/ students I suggest offering a potential investor points not only in your short thesis/independent project, but in the first feature you produce, so that for the money they invest in the short, they go along for the ride and benefit down the road from your career. This scenario has worked for students. But it didn't fit two guys who'd already been in the industry for decades.
So Roc languished in his loathing, and, according to him, the reason I didn't was because at least I'd produced/directed a few films the way I'd written them, so I had that no matter what they did to my work now.
Then, as the new century rolled around, The Blair Witch Project seemed to validate the prediction of David Whitten, a brilliant distributor and former publicist who advised me that the coming millennium would see no-budget films made by young filmmakers on digital video, bypassing the studio system entirely and recouping their costs on Broadband. I became intrigued by a medium that had hitherto repulsed me.
The Sweet Life was our simplest screenplay, despite having thirty speaking parts and a number of locations. There were no big effects, no makeup meltdowns, nothing to give the insurance company the willies. It was essentially a character piece. We'd done a staged reading of it two years earlier and it had been optioned for eighteen months by a small company who planned to shoot it in 35mm. When their option ran out, they generously gave me their budget workup, and now, out of curiosity, I adapted it for digital video to see what the cost reduction might be. Same amount of shooting days. Lots of my little money-saving ideas inserted (which you'll read about later). But mainly it reflected the ways in which digital video impacted production and postproduction expenses. The budget plummeted from over a million to $250,000.
I'd produced seven feature films over the last thirty years, and one of the reasons I stopped was because while it's been relatively easy for me to raise money, it's always proved nearly impossible to get it back. The distributors and exhibitors, who lay between me and the greenbacks, were determined to keep them from reaching me in myriad nefarious ways, and they were armed with accountants galore, while I was just one vulnerable filmmaker with limited funds to fight back. And since the money I raised came mainly from people I knew, rather than from nameless entities like banks and investment funds, this back-end problem weighed heavily on me. Screenwriting, equally lucrative in my career, did not come with the financial burden that being a producer entailed.
But digital video introduced a new wrinkle into the scenario. A million dollars might be hard to recoup given the obstacles mentioned, but a quarter-million wouldn't be. And with new, evolving audience-access venues like Broadband, DVD, and digital theater projection, I might not have to deal with the distributors at all. The new century might just have rendered Hollywood an anachronism in the arc of independent production.
I wandered over one night to Rocco's mother's apartment, where my convalescing partner was being nursed back to health on chicken soup and maternal love, and told him he was going to get his chance.
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