Business Musings: More Negotiation Advice From The Hardass

Business Musings: More Negotiation Advice From The Hardass

One of the major reasons I write a lot about contracts and negotiation is because in the entertainment field, which is where we writers work, contracts are a nightmare. They’re often written by people who are not lawyers (agent contracts with writers) or negotiated by people who are not lawyers (publishing contracts negotiated by an agent for a writer) or are based on “accepted practices” (many Hollywood deals, some game deals, lots of publishing deals).

I do a lot of my early negotiating myself. I have learned the hard way that I’m a hardass, and the people I could hire to do the work for me (like agents) are not. They are not even soft asses. They’re often just plain ignorant. I am still stunned by the fact that one of my agents, back in the day, gave a major actor a free option on one of my books because he had “such a beautiful speaking voice.” Yes, he does, which was why he spoke to her instead of having one of his representatives do it. (And she is still a major agent. Jeez.)

My hardass tendencies get a lot of pushback from people who are used to doing things “the usual way.” I’ve had Hollywood lawyers threaten to steal my work (seriously!) because I refused to negotiate on the phone. I’ve had agents tell me how ignorant I am because I refuse to speak to them. I’ve had dealmakers at studios tell me that I’m getting in the way of a project because I expect to have things in writing.

My attitude toward all of them? I really don’t care. If you want to license my property, you will work with me my way or not at all. I’m happy to walk away (unlike most writers) and that shocks the dealmakers too.

Many of those dealmakers are happy to work my way. I do a lot of negotiating and deal making this way. The ones who really balk do so because they want something for free or they want to screw me.

A handful have had to work with me because they pitched my property without my permission and got a lot of interest, and now they need to wrap up my participation before the person they negotiated with discovers they haven’t even contacted the writer.

Sometimes I hold those people over the barrel of their own making, getting a great deal (on paper, at least). But first, I try to find out who is interested and contact that party myself. Because contracts—written contracts— protect both sides. I am free to make a deal with a third party that the original party contacted without my permission, and I can cut out the original party because we never had a deal in the first place, and they were trying to screw me.

As I said. Hardass.

Of late, the world keeps serving up examples of why my way is the best way.

At the end of August, a judge’s ruling in one of the many lawsuits that Johnny Depp is involved in caused a lot of consternation among the Hollywood legal and management community.

In Hollywood, lawyers, agents, managers, and many others try to rope people into verbal conversations about rights and management and other things, claiming that those conversations constitute an oral agreement, and that agreement is binding.

This is how things have been done in Hollywood for decades. I think it’s incredibly dangerous, which is why I have always insisted on things in writing. If I got trapped into a conversation with someone from the movie/tv industry, I always followed up with an email and demanded that the email’s recipient respond to the email. Often they did with nothing more than a Great talking to you!, making my version of the conversation the legitimate version. When someone is used to doing things the “accepted way,” and then has to deviate from that way, they make a lot of thoughtless mistakes. Often, the first mistake they make in dealing with me is thinking I’m a typical writer.

In negotiation, I’m anything but.

In the long history of Hollywood there have often been court fights over the legitimacy of oral “agreements.” Usually both parties ended up settling or the person with the least amount of money (usually the writer/actor/talent) gave up. A rich party to a lawsuit can keep lawsuits going and going and going, racking up costs on both sides, until the less-rich (or impoverished) side just gives up due to severe debt.

Well, Johnny Depp is involved in so many lawsuits right now and he’s clearly so clueless about finances that he’s willing to go after everyone, no matter what. (One of the many reasons he’s suing so much is that he lost most of his fortune to bad management and bad investments and bad personal life choices.)

The judge in the case Depp filed against his “talent lawyer,” Jake Bloom, is from a third-generation Hollywood family. Unlike most judges who get Hollywood cases, this judge is not starry-eyed because of all the celebrity and Hollywood glamor before him. He’s watched the industry up close and personal. If you’ve been around the industry and you have open eyes, you see that the film/TV machine in the U.S. is a nasty, grabby, ugly business behind the curtain. It’s no surprise that the #MeToo Movement became a big thing because of Hollywood revelations. The industry has been exploiting and violating people for generations.

The closer you get, the dirtier you can feel. And I say this as someone who loves TV and loves movies and has friends who work in the industry. Not everyone who works in the industry is mean or abusive or evil. Most are regular folk, doing their jobs, trying to keep their heads down as they produce something to the best of their abilities.

But there are people in the film/TV industry whose job it is to get everything for nothing and to use whatever means necessary to do so.  These jobs have existed since the dawn of Hollywood, and a certain type of human being gravitates toward these jobs. There’s a reason that the cliché of the soulless Hollywood suit exists. These folks are, by inclination and by the nature of the jobs they’re hired for, rapacious. They’re also charming, and can talk you into selling your grandmother, especially if you love her dearly.

My first husband was a charming salesman. I learned in that marriage that he was good at what he did. I learned after we divorced and I got to know the rapacious Hollywood types that my ex would have had to up his game by factors of 1,000 to compete with those types.

I’ve also learned that my knowledge of what the types are doing gives me no immunity to the charm. My initial natural Midwest politeness in person and on the phone makes me a ripe target for their shenanigans. (I get blunter the better I know someone or if I’m not caught by surprise verbally.) I’m not alone in this. Again, that’s why I recommend negotiating only by email. We writers are so inexperienced compared to these sharks that we could agree to something without even realizing we’d done it—when we’re on phone. On paper, we writers rule. We know how words work and we know how to parse them and use them. We also do better when we have time to think about things, which email allows.

Anyway, this particular Johnny Depp case will actually go to trial in May 2019. Depp wants to recoup the payments he made to this talent lawyer over the decades—some $30 million—because, Depp says, the verbal agreement between them isn’t a valid contract.

There’s a lot of legal arcana here, none of which is germane to this blog post. (For instance, even if Depp wins, the lawyer could countersue for a specific fee, because he provided services which, according to California law, would require compensation.) What is germane is this:

On August 28, Judge Terry Green ruled that Depp’s contract with his lawyer should have been in writing. The contract was a handshake deal, which, as Variety notes, is a common way of doing business in Hollywood.

Other cases have made the same argument over the decades, but other judges have been too blinded by Hollywood glamor or have been persuaded by the argument that things are different in the entertainment industry.

Green, whose long family history made him immune to those arguments, said this:

I don’t think there are special rules for show business. I grew up in a show business family. I’m aware that show business people think they live in a separate universe, but they don’t. Not a separate legal universe.

As Bloom’s legal team kept trying to persuade the judge, he remained unconvinced. And finally, he said something that should have all of the handshake Hollywood folks tremble in their designer shoes:

At some point, we have to comply with the law. [California Business and Professionals Code Section] 6147 has to mean something.

The thing is that generations of movie/TV lawyers and agents and managers and talent here in the U.S. have operated as if they did live in a separate legal universe, and the courts turned a blind eye to that. Most disputes were settled out of court.

This ruling will have, in the words of The Hollywood Reporter, “sweeping impacts across Hollywood.”  The Wall Street Journal was even blunter in its headline: Ruling in Johnny Depp Lawsuit Threatens Hollywood Lawyers’ Handshake Culture.

Yep. Thank heavens.

We can only hope.

Because the ruling might not make any changes at all. If Depp’s former lawyer appeals the ruling, and wins, then this practice will continue. The current practice allows bullying. It allows the most powerful party or knowledgeable party to win in any legal case or settlement by protracted legal action and/or flat-out lying. It allows the ignorant to remain ignorant of what they sign and how they go about making deals.

And as we all saw in my post “A Case of Writerly Cluelessness” and “Learned Helplessness,”  the talent (which writers are) in these instances are often deliberately ignorant.

I’m telling you about all of this because I get pushback from lawyers in other parts of the legal world who tell me that phone negotiation is fine or oral agreements work for the most part or that the law will protect the client should something go awry.

Sure. In their world that is probably the case. But as Diane Karpman, a California attorney who specializes in legal ethics cases, told The Wall Street Journal:

…“we’re special” is a refrain she has often heard from Hollywood lawyers over the years when giving presentations on ethical duties. “They’ll say, that’s the rule, but that doesn’t apply to us.”

The reason this ruling has caused such a kerfuffle in Hollywood at the end of summer is that for the first time, a judge has decided that the rules do apply to Hollywood attorneys.  This ruling might make Hollywood a tad safer for the so-called talent.

Or not.

You still have to walk in with your eyes wide open and your bullshit meter on high. You have to be willing to run at the first bad sign. You can’t be starry-eyed and hoping for great wealth. Writers who go into negotiations like that will always get screwed.

Writers who learn how to protect their own interests will end up making good deals and nice money from their movie and TV licenses. And those writers generally handle the negotiation themselves, like Kevin Kwan did in Crazy Rich Asians (which I discussed in detail in the blog post “Knowing What You Want”). Again, he didn’t negotiate completely alone. He had a team of lawyers. But he was the one in charge. Writers almost never are.

So yet again, at the end of this weird summer of 2018, another negotiation example reared its complicated head. I hope you’re learning from these posts. Because incidents like this one, along with the rabbit holes I go down when I see things mentioned in the articles that I don’t understand, are how I learn about things that I have not (yet) experienced in the industry.

I hope you will look on these things as a learning opportunity as well.

***

Thanks to the folks who sent me questions about the Johnny Depp cases (his management lawsuit [settled in July] is another cautionary tale entirely). I find a lot of these things because of readers who share. I can’t tell you how much I appreciate that.

I also appreciate the financial support. The blog exists because you readers continue to fund it. Thank you!

And thanks to all of you who read it weekly, share it weekly, and ask good questions. They keep me inspired.

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“Business Musings: More Negotiation Advice From The Hardass,” copyright © 2018 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo / Orla.




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11 responses to “Business Musings: More Negotiation Advice From The Hardass”

  1. I was just at a local media con for films, and a vendor and I were talking. He said that Dawn Wells was the only member of the cast of Gilligan’s Island to come off the show better off. She asked a lawyer to look at her contract and got some things changed.

    Meanwhile, when I was living in Los Angeles, I met one of the writers who was on The Love Boat. She penned a lot of episodes. The studio had it in the contract they would pick a location and do residuals based on an average of how often the show was being rerun. At the time, it was really hot and on almost everywhere in the country every single day. That clause of location average…the studio picked the only place in the country where it wasn’t showing and that was the average.

  2. Laura Kirwan says:

    Getting stuff in writing is also a good way to pre-screen for competent business partners. I used to work in local government and did a lot of real estate deals and affordable housing lending. I learned almost immediately that the quickest way to separate the con artists and wannabes from legitimate developers was to ask for a written proposal. The professionals would ask how much detail I was looking for, but there was never any argument or push back about the request. The jokers would act surprised or offended or genuinely not understand what I was asking for. Real property related contracts have to be in writing to be enforceable and I know IP and agency law are different, but I think the basic lesson holds. If you ask at the start for a term sheet or written deal summary or sample agreement, anyone who expresses outrage or impatience or condescends to you that you don’t understand how business works is probably not someone you want to work with.

  3. I always read your posts. (And hope I absorb some of your wisdom.) I saw a Tweet the other day by an author who said something like, “I was just offered a contract for my book and I have no idea what to do now.” She had a bunch of replies, but I added mine which was to read anything Kristine Kathryn Rusch had written on the subject of contracts and negotiation. What do you want to bet, she doesn’t heed that advice?

  4. Ferran says:

    “and I can cut out the original party because we never had a deal in the first place, and they were trying to screw me.

    As I said. Hardass.”

    You’re not a charity NGO.

    “This ruling might make Hollywood a tad safer for the so-called talent.

    Or not.”

    It will be safer. Some people will insist that helmets are for sissies, but, by and large, it will be safer.

    Take care

  5. Kessie says:

    Have you heard about author Kate Morton being sued and screwed by her agent? It’s yet another cautionary tale about bad agents. And this agent is BONKERS.

    https://www.publishersweekly.com/pw/by-topic/childrens/childrens-industry-news/article/77656-agent-danielle-smith-s-former-clients-speak-out.html

  6. Teri Babcock says:

    “Many of those dealmakers are happy to work my way. The ones who really balk do so because they want something for free or they want to screw me.”

    This needs to be in blinking lights. There are no exceptions to this.

  7. Do you think it’s an East Coast/West Coast thing? On the East Coast creative professionals tend to undervalue their rights but get everything in writing. On the West Coast, folks tend to protect their rights voraciously but do it with a hand shake. Two different cultures, I think.

  8. writerchick says:

    You know, Kris, I like you. I like people who tell it like it is. And I like hardasses too. Thanks for dealing with this topic – it is of great interest to me.
    Annie

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