Agents: Some Fine Print

A few people responded with valid comments to our last article on agents.

Rather than a lengthy response in the comments, here are some thoughts on the agent’s commission percentage and hiring an entertainment attorney instead of having an agent.

1) 10% commission from agents rather than 15%

10% agent commission seems to be closer to the market mean.

As a relative newbie in the big world of screenwriting business, I spent most of my LA time with development execs and producers and only minimally with agents (for the reason that the execs and the producers are the people that matter and are the ones who are buying).

The fundamental point in the essay that prolificity of output is the critical factor for agents is a finding synthesised from multiple people who were all independent from each other. It is not a point that should be dismissed.

Ditto for the last point that no reputable agent slugs you with an upfront fee.

2) Why bother with agent if you have a script sale + entertainment attorney already.

In principle, the difference between an agent and an attorney is that the agent is a haggler for better conditions whereas the attorney is a fine print checker.

Theoretically, a typical attorney will only ensure that the terms and conditions of the sale or option deal are not below industry par, that the deal contains no glaring gaps where the producer can exploit film profits without letting you have a cut, and so forth.

This is not the same as saying that the attorney will make any effort to *maximise* the benefits that you could win after some wrangling with the producer. (That is supposed to be the agent’s role.) In principle, an attorney’s job is not to try to get the best deal for you that can possibly be squeezed out of the party. It is merely to make sure you are not being swindled with the deal that is currently on the table.

In practice, I have gathered that it’s a little more complicated than that in LA.

Firstly, a *good* attorney may well be prepared to exercise some proactivity to ensure you get an improvement on terms and conditions, where such a move is feasible/realistic given your market status and the quality of the screenplay. Such proactivity would mean he is playing a quasi-agent role for you.

(By the way: As in all types of businesses, “good” does not necessarily mean high-fee-charging or big name. For example, a talented young gun wanting to establish a market prescence will have the enthusiasm and energy to deliver above-average service for his first clients, with the expectation that they’ll come back to him for more business.)

Secondly, there ARE entertainment attorneys in LA who parade themselves as being BOTH a haggler AND a fine print checker. I am not in a position to authoritively comment how well such two-in-ones perform on average. My best guess is that it all depends on the specific experience, intelligence, and energy level of each individual attorney-agent.

(The general business adage that a jack of all trades is ‘a master of none’ is right some of the time in my own general business experience. But not always!)

Thirdly, in the case of a screenwriter’s first script sale, what I have gathered is that you can not seriously expect to exert much bargaining clout. For you’re still only a new-name even with a definite sale being wrangled out. (My sense is that it is in the SECOND screenplay sale that you start being able to qualify for extra ‘goodies’ in your sale contracts.) So, in this context, there may be an argument to not bother with an agent at that stage.

Factoring all these considerations into account, my recommendation is that, in the case of your first screenplay sale, the engagement of an agent (or not) could well come down to a knife-edgey cost-benefit judgement call.

IF you have a proactive and cluey attorney and IF you are yourself a native LA-ite with some contacts in the film industry already, then you probably could get away with not bothering with an agent with your first sale.

If, however, you are an out-of-towner, new to the country, let alone to LA city, with no industry contacts or mentors yet, I would suggest that you engage an agent and suffer the commission … As you are prime fresh meat for exploitation.

If you exist somewhere in-between these two poles, then it really would be a down-the-wire cost-benefit call you are just going to have to sit down and decide for yourself.

I hope this is helpful and clear.

And …

3) The feasibility of one great script versus four good ones.

On paper, it would seem that it is better to win a commission that nets, say, 200k in one go for the whole year, than to work on four separate scripts that net, say, 50k each.

(Important Note: These figures are illustrative only! I don’t claim to be yet industry savvy enough to know how representative these numbers are in the real hurly-burly of LA deal-making!)

But there are business cashflow considerations to factor in here. Can a given agency AFFORD to wait for an extra, say, 5 weeks with no income to pay the rent on the premises, the electricity bill, the wages of the administrative staff, etc, until it finally receives the great lump sum award?

If a particular agency is managed with tight fiscal discipline and/or has multiple reliable deals being hammered out at any one time, ALL the time, then maybe it can afford the wait.

But my general experience (at least in Australia) is that most businesses are nowhere near so well managed finacially. They could never afford to wait 5 weeks without suffering a major cashflow crisis. I have reasons to believe that Americans, on average, are cannier entrepreneurs than the average Australian business person, so my past experience may be skewered here.

But, then again, human nature is such that most people – even business people – do not exercise great fiscal discipline even when there is a practical, bottom-line, long term gain to be had by doing so. So I’m willing to bet that most agencies prefer the cashflow convenience of quicker, smaller, sales than the long haul of a big sale.

Though, at the same time, I absolutely do not rule out the exceptional few in LA who may well be able to ride out the longer wait and therefore pocket the greater gain. There are some *really* sharp operators in that town!

I hope I have now made the logic behind my claim in the essay clear.

That’s all from me.

-Steven Fernandez

Steven Fernandez is a writer-director of short films and theatrical shows in Sydney, Australia. He is currently writing Human Liberation – an epic novel and screenplay package set in mythic ancient Greece.

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