How common are submission release forms and what rights am I signing away?

Question: I have just finished a script and have approached a few agencies and producers and some want me to sign a release form before reading my screenplay. How common is this and what rights am I signing away?

Given the litigious nature of our society, producers and many agents are insisting that a writer who submits his or her work sign a submission release ("Submission Release") as a means to prevent a writer from bringing a claim or ultimately a legal action for copyright infringement, breach of a confidential relationship or breach of an implied contract just to name a few possible causes of action against the producer or the agency.

The Submission Release generally states that a writer waives any claims including, but not limited to, the existence of is a confidential relationship between the parties or any other agreement except that the agent or the producer has agreed to review a writer’s work in consideration of the writer signing the Submission Release.

Most of these Submission Releases range from somewhat fair to terribly one-sided. Examples of the former usually state that if the agent or producer is working on a similar project that has been independently developed or received and reviewed, the writer cannot bring a claim against the agent or producer. The parties would have to explore the circumstances of what constituted an independently submitted or developed project.

If the Submission Release states that the parties are willing to resolve a dispute by arbitration which is private, generally quicker and less costly than litigation (in most cases) that is a helpful sign for the writer since most agents and producers realize that most writers cannot afford litigation costs.

Some Submission Releases state that if a writer should prevail in a dispute with an agent or producer, the writer’s remedy is limited to either Writers Guild of America (WGA) minimum scale or a certain fixed amount such as $25,000. The agents and producers are attempting to limit their liability; however, if this type of provision does not appear in a Submission Release, then that is obviously beneficial for a writer.

The Submission Release could state that a writer’s remedy is limited to monetary recovery and that the writer would not be able to impede or prevent the production, marketing, distribution or other exploitation of a project which is the subject of the dispute. Without this provision, a producer or a studio would have possibly millions in production and marketing money at risk. If this provision appears in the Submission Release, there is almost no chance of removing it for the aforementioned reasons.

Most Submission Releases acknowledge that a writer should retain a copy of the Submission Release and the submitted material.

Obviously the safest way to protect a writer’s work is for the work not to be shown to anyone; however, that is counter-productive and somewhat ridiculous. Therefore, a writer should have an attorney review the Submission Release so the writer understands what he or she is signing and to determine if there is some sense of fairness to the Submission Release or is it a "take it or leave it," one-sided agreement so that the writer can make an informed decision whether to sign the Submission Release.