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Pre-Pitch Hold Harmless Agreement – A License to Steal?

I recently received a question about a producer requiring a “Hold Harmless Agreement” or similar “Release” before accepting a script or agreeing to hear a writer’s story pitch. The question was whether this was a legitimate release, or something more sinister.

As is so often the case, how you see things depends on where you stand.

These types of Hold Harmless Agreements are increasingly common, often required by producers, directors, or anyone else that receives scripts, story pitches or similar material from writers, particularly if the material is not coming through a trusted source, such as an agent, manager, entertainment attorney, script consultant, or the like.

The Hold Harmless typically states, in flowery lawyer-type language, that the writer will not sue the recipient of the story material even if the recipient passes on the writer’s proposal, and even if sometime later the recipient produces a similar if not identical story. Language in some of these agreements has the writer completely waive any right to sue for copyright infringement.

The legitimate purpose of this type of agreement is to advise the writer that the producer – director – whoever is receiving the material – may already have, or may in the future receive a project similar to the pitch or material the writer is about to divulge, and that in that instance, the writer holds the producer harmless and will not sue if the SIMILAR project gets made.

However, when used for evil, this is basically a written document that makes it easy for a nefarious producer, director, etc., to steal a writer’s material, leaving the writer with little, if any, legal recourse. Immunized by the Hold Harmless, the producer, director, etc.,  may listen to the pitch, write his own version or hire a work-for-hire writer, following the same story line, characters, plot, twists and complication, etc., and the writer would have waived, in writing, his right to sue for copyright infringement.

A very unlikely scenario – to be sure. But why should the writer waive any legal rights just to reveal his idea; and reveal his idea to someone who – if that person accepts and makes the project – presumably will be enriched by its production!

Writers should NEVER sign these things. Although, admittedly, without such a release some legitimate industry people will refuse to hear pitches or accept material that hasn’t come through an agent, manager, entertainment attorney, or other trusted source. These types of releases are requested by producers and others frequently, but they are NEVER in the writers interest to sign.

If you stand in the Italian crocodile loafers of the producer or similar recipient of story material however, the view is entirely different. Legitimate, non-copyright infringing producers, etc., have been sued by writers that couldn’t accept the fact that their story wasn’t all that original; that before, or perhaps after they “showed theirs,” there was another legitimate project, from another legitimate source, that in fact got made by the same guy that passed on the offended writer’s material.

Cases of honest, if mistaken, belief of plagarism, leading to producers having to defend what to them was a seeminglyfrivolous, and ultimately losing, lawsuit.  Oh the travesty!

Still, it is a license to steal in the hands of the wrong producer – and frankly, who knows who is the wrong producer until it’s too late.

The simple fact is that the writer shouldn’t have to waive legal rights to pitch or share the material for which they have bled, sweated and… tear’ed.

Nor should the writer immediately assign to conspiracy what is very often a matter of unfortunate coincidence – the fact that two similar scripts were orbiting the creative universe at the same time, and only one got made. Impossible you say? No! Sometimes both get made; such as:  two Capote’s! Two “Astriod-Armagedeon-spacemen-save-the-world” movies! Simultaneous movies about Mall Cops!  What? Two Mall Cop movies!? Really? Really!

Few story ideas are truly original. And, story theft does happen.

And pre-pitch Hold Harmless Agreements are bad. As is the litigious environment that makes them increasingly requested.