Q&A: Does Being “Pay or Play” Mean I Get to Direct My Movie?

by Greenberg Glusker Fields Claman & Machtinger LLP
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Q:  I’m a writer/director.  I wrote a script that’s getting some traction.  I obviously want to sell it but on one condition:  I have to direct the movie.  I don’t think anyone else can do it justice…  A producer just presented me with an option agreement.  In our conversations, he agreed that I could be the director.  In the option agreement, it says that in the event the project receives financing and if a few other conditions are met, I’ll be engaged to direct the film on a “pay or play” basis.  I know that “pay or play” is a good thing so does this mean the producer is essentially agreeing that I’m the director?

A:  When I first started practicing entertainment law, I believed the term “Pay or Play” referred to the next hot NBC primetime game show, which I assumed would be hosted by Gallagher.  Fortunately for all of us, it’s not.  However, I’ve found that while it is a very commonly used contract term, and everyone wants it in their agreements, there is (as evidenced by your question) some confusion about the full extent of its implications.

To answer your question bluntly:  unfortunately, being “pay or play” does not necessarily mean that you will be the director of your film.  The term means that once certain spelled out conditions are satisfied (in your case, once the producer obtains financing and the “other” conditions are met), you are guaranteed one of two things:  you will either direct the movie and be paid or you will be replaced with another director but still be paid.  [Note:  of course, if the conditions are not met, you will neither direct nor get paid so if you move forward with this agreement, make sure the other conditions that must be met are relatively easy to meet and are relatively early in the development process.]

As you can probably glean, being “pay or play” is generally a good thing because it means that once production/development gets to a certain point in the life of the movie, even if the producer/studio no longer wants your services, you’re still going to get paid.  Furthermore, due to the fact that the producer/studio would have to continue to pay you if they replace you, it makes it less likely that they’ll replace you cavalierly.

That being said, it still leaves open the possibility that you can be replaced.  If they love “you the writer” but in the first few meetings with “you the director” it becomes apparent that you’re about to go Vincent Gallo when they want Ron Howard, they would rather replace you even if it means paying pay you and another director.

Therefore, in order to guarantee that you will direct your movie, you would instead need to be engaged on a “pay and play” basis. This term is essentially a guarantee that you cannot be replaced.

Before you charge back to the producer with your chest puffed out saying “some guy I don’t know on the internet told me I should be pay and play,” you should know that “pay and play” is a rarity and is generally reserved for A list talent (like the aforementioned Ron Howard).  Therefore, if your script is being optioned by a studio or major production company, you being engaged on a “pay and play” basis is about as likely as Lauren Conrad winning an Honorary Award at the Oscars at the tale end of her “career.”

Therefore, if you don’t want to sell your script if there’s even a possibility of it being directed by someone else, your options may be limited.  Your best bet would be the indie route.  Try to find an independent producer and who believes in your vision who’s not going to be as rigid as a studio.

If this doesn’t work, another option would be to compromise.  See if you can get the optioning party to agree that you’ll at least be “pay and play” for the first two weeks of principal photography, after which you’d be “pay or play.”  This would at least give you the opportunity to show your directing chops; if it doesn’t work out at that point, you may have to accept the fact that your script may be brought to life by someone else.  Perhaps the fact that you’ll be paid for not working would help ease the pain.

This blog was originally published as part of Legal Ease, Film Independent’s weekly column on legal matters pertaining to the entertainment industry. To see other LEGAL EASE columns please click here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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