Category Archives: Agents

Independent Bumps

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Recent observation: on two separate deals, different reps at different agencies asked for a $25K set up bonus if their writer-client’s projects were independently produced. A set up bonus or “studio bump” is often negotiated in a writer’s option/purchase agreement if the producer successfully sets the project up at a major studio. The bonus is often negotiated as an advance against the purchase price. Notwithstanding the ebb and flow of capital investment in independent pictures, financing projects at any budget level north of even $250K is always a test of a producer’s tenacity and access to resources. If this deal point develops into a trend, it will only be a testament to the rep’s negotiating ability; their client’s industry precedent; and the ignorance of the producer’s rep to the financing problems facing most independent producers. I rejected the reps’ requests in my negotiations for this very reason. The next time I represent a writer, things may be different.

Check out Jeff Garlin’s unusually frank interview with Elvis Mitchell on KCRW’s “The Treatment.” In addition to pushing his first picture as director, writer and star, “I Want Someone To Eat Cheese With,” Garlin speaks candidly about why it is OK to take lucrative roles on bad movies and the challenge of independent finance. On the latter, he laments the experience of meeting with a prospective investor at the Mondrian Hotel on the Sunset Strip. The investor brought along two hookers – they asked better questions than he did.

Lastly, the NY Times ran a piece by David Oshinsky about book publisher Alfred Knopf’s archive of reader’s reports (aka “coverage”) and rejection letters on such works as “The Diary of a Young Girl” by Anne Frank (“a dreary record of typical family bickering, petty annoyances and adolescent emotions”) and George Orwell’s “Animal Farm” (it’s “impossible to sell animal stories in the U.S.A.”). “Knopf wasn’t alone. ‘The Diary of a Young Girl,’ . . . would be rejected by 15 others before Doubleday published it in 1952. More than 30 million copies are currently in print, making it one of the best-selling books in history.” This should confirm what everyone already suspects: there’s no accounting for taste even among the taste makers. In other words, no one knows nuttin. Tenacity (see above) – not necessarily talent – over the long term is key.

The Negotiation Culture: When Is It OK To Lie?

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A literary agent recently lied to me during a negotiation. Anyone who negotiates for a living; indeed, anyone with any meaningful time in the business might find that unremarkable. But the truth is, the entertainment business, like many businesses, is built on trust. It’s ironic then that no one would be surprised by my complaint even though everyone knows that trust is the currency of the realm.

Without trust between the parties and between their representatives “the deal won’t make.” So in every negotiation between reps in the business or kids on the playground, there is an implied agreement to negotiate in good faith regardless of the leverage you have in the deal. The law makes this assumption in many jurisdictions as well. Sure, hard ball negotiations and bluffing are fair game but even reps have a common code of conduct without which the whole idea of deal making would not be possible.

The deal closed last year and my client, let’s call him “Producer,” wanted to renegotiate some of the terms before the option lapsed. However, time was running out and, barring renegotiations, Producer needed to come up with some serious coin to pay Writer or risk losing control of the screenplay.

The agent, a young turk in his 20’s (let’s call him “Agent”), went out of his way to protect his client the “Writer.” This impressed me (my client, not so much) because even though Agent was creating greater difficulties for us, no one could blame Agent for doing right by Writer. Too many agents when faced with the choice of being loyal to the deal or to the client, pick the deal. It never occurred to me that he might not want the deal at all because AGENT WAS NEGOTIATING WITH ME; even giving me more time past the option payment deadline to renegotiate the deal.

Negotiations continued over several days and Agent agreed to the new terms subject to Writer’s approval. Agent PROMISED to get back to me no later than 5 pm. It was the last day of the extended deadline and even though I technically had until 11:59:59 that night, it was a Friday and for all practical purposes, the deadline was really “the end of business” that day. Agent was in New York so a 5 pm deadline there would still give my Producer in LA time to strategize if things went sideways; which of course, they did.

No call at 5 pm New York time (no big shock).

I followed up at 5:30 but Agent’s assistant told me Agent was in a meeting and could not come to the phone. I emphasized the importance of hearing back from Agent ASAP.

I followed up at 6:30 and got Agent’s voice mail. Apparently, Agent had left for the day without the courtesy of calling me back (how do these guys make a living on banker’s hours?) . I called Agent’s cell phone and left what can only be diplomatically described as a “terse” message on his voice mail.

I updated Producer and discussed the possibility that Agent was ACTUALLY DUCKING me. Agent was young and inexperienced so maybe he wasn’t ducking; maybe he was just flaking on me. An interesting but still unacceptable alternative. Ducking me was dumb because it exposed Agent, his agency and Writer to a possible law suit for acting in bad faith, among other things. Flaking on me on the other hand, was merely unprofessional and rude.

I called Agent’s cell phone several more times; the last time time my call went straight to voice mail without ringing at all. When a call goes to voice mail without ringing you know that the person you’re calling turned their phone off. This meant that Agent was picking up my messages or at least knew I was calling him – a lot.

After several more confidential discussions, Producer decided to pay Writer and drove over to the agency with check in hand (not an easy task during a Friday rush hour in LA).

Later that evening, Agent copied me on an email to Producer in which he acknowledged that he had, indeed, been ducking me. I responded by text message that the only thing that anyone has in this business is their integrity and Agent lost his so easily, so carelessly and so soon in his career. His response is irrelevant but predictable.

If the Agent wanted Producer to comply with the original terms of the agreement or even move on without Producer, the better course would have been for Agent to simply demand the original option payment by the end of the day or threaten to walk from the deal.

It’s hardball but at least I could trust him to do what he said he was going to do.