This is a cautionary tale about selling a web series. It has been fictionalized to protect
the guilty.
Last spring, I got a call from Jenifer “Toddy” Totsworthy,
producer from my glory days at Usher House Pictures in the ‘90’s. She was now involved in a capital
venture, producing original web content for a dot-com called “Phfirt!”. She wanted to know if I would be interested in creating a web series from soup to
nuts.
She responded to my stunned silence by giving me the back-story. Phfirt! is a website of things amusing
to teenage boys and underclassmen, with a message board for snarky teens rants,
a page for cool and uncool products, videos of music mash-ups, college
high-jinx, and cartoons where characters are mutilated. It is the brainchild of Dylan Wankler,
the 20 year-old son of Jerry Wankler, Toddy’s old boss at Usher House. Usher had tossed Toddy and Jerry to the curb in 2009
after shutting down the studio’s 82 year-old animation department in favor of a
motion capture studio in Vancouver.
Ironically, it was Jerry’s idea.
Dylan started the site as a high school sophomore. Now a
college sophomore, his site is worth $4.5 million. For his out-of-work pappy to muscle in on the fun was a
no-brainer. Jerry aimed to take Phfirt!
to the next level by posting professionally made original web series . Knowing he is universally despised by artists. Jerry hired his
old whipping girl Toddy (using Dylan’s
money) to lure professionals to the site. I was on the call list.
“Good money, for the internet.” she said. Good
wine, for a box.
Then she dangled the BIG CARROT. “If the web series is a hit, it could evolve into a TV
series or feature film.” Toddy
knew me well enough to stop herself mid-pitch. “Yeah, yeah,, I know it sounds
like horseshit. But I’d like to
work with you again and I think you could have a lot of fun with it. “
Fun? Well sign
me up!
A few days later, I was on a conference call with Toddy,
Jerry, and Dylan, pitching my idea for a web series, Son of a Bitch. It’s about a wolf-boy with a chip on
his shoulder. Dylan laughed, and I
sold the show.
Enter Phfirt! attorney Adam Pickelhauben – a good attorney,
for the internet. He e-mailed a
contract – their standard form with my numbers plugged into it. It seemed friendly enough, just
standard legalese. Toddy
underscored this point, “It’s the same deal all the artists get, but your
numbers are better.” I was getting
a special deal with the money – lousy pay, but great for the internet - so why sweat the legal mumbo
jumbo? Plus the BIG CARROT. It’s all good!
I called my lawyer, Brent Wood. As soon as I said the words “web series” he groaned. “I could do a lot of work and spend
a lot of your money, but it would still, ultimately, be a shit deal.” He said. “With the internet, there are just too many unknowns. I wouldn’t get involved with it. “ I thanked Brent for his frankness, and
for not spending a lot of my money on a shit deal. I also thanked
him for warning me of the imminent screw job.
I gave the contract a real read, and gave it some real
thought. Everything seemed on the
up and up, there was nothing objectionable in the deal. I thought about what could become of
the project vis-à-vis the BIG CARROT.
TV and/or movie deals! Money! Cartoon fame! I thought about what I wanted, in terms of rights and
guarantees, and discovered the problem was not what was IN the deal, but rather
what was NOT in the deal.
I e-mailed Adam Pickelhauben with a list of demands:
1. I want a guaranteed attachment to Son of a Bitch in any
future form, TV, feature film, whatever.
2. I want right
of first refusal to write and/or direct future web episodes, as well as any
future forms of the project.
3. If the
project goes nowhere and is terminated, I want the rights to, at some point, revert
back to me.
4. I want
right of first refusal to produce the series, in all forms, through my company,
Moore Studios.
Adam
promptly replied “No.” to all of the above.
I
replied, “So even though this deal
calls for me to create an original web series to be written, directed, and
produced by me, at my studio, hiring my own people, your company, Phfirt!, who
stands to profit greatly from my creative efforts, won’t get my back.”
To which
Adam replied, “The other artists
are happy with this deal.”
If there
were an app for strangling lawyers…..
“I’m out.” I said.
I really
didn’t want to be out. I had
already done design work, story outlines, wrote two episodes, and Toddy had created a budget and
schedule for me. I could see the series so clearly, but it was like a hologram.
Adam called my bluffs in such dick-ish fashion, I had to call it off.
Three and
a half minutes later, the phone rang.
It was Jerry Wankler. He
had on his “smooth executive” voice.
He dismissed Adam’s jerk tone as just a web-lawyer thing. “He’s really a good guy, for a web
lawyer. ” After hashing things out, Jerry agreed to everything I wanted. “I’ll have Adam write it up.”
“Wow!” I thought, “I’m a baddass negotiator!”
A few
days later, Adam e-mailed the new, improved deal, with a very pleasant note, saying
this is the deal as per my conversation with Jerry, and politely urged me to
sign and FedEx three copies to him forthwith. Toddy called to likewise usher me along, “We’re losing
production time.”. We had already
spent three weeks volleying over this deal. By my own schedule, I was to start recording in a week.
I was very
eager to get started on Son of a Bitch now that the deal was all straightened out.
I was tempted to just sign and send, but a little voice, the one I ignore after a third beer, was saying,
“You’d better slow down and read the contract again, doofus.”
I sat
down and went through the whole contract again. Bla bla bla, yadda yadda yadda……where are the changes? The
language was slightly different, but the content was unchanged from
before. I called Wankler. “Adam didn’t change shit!” I said.
I
expected Jerry to be surprised; he wasn’t. He said the company couldn’t give me what I wanted.
“Well who
the fuck is the company, Jerry? “
I snapped, “YOU’RE the
fucking company!”
Jerry had
to admit that he, indeed, was the fucking company. He was Phfirt!.
He tried to soft sell, saying this was all standard, and hey, the other
artists are okay with it.
“I’m out.” I said. This time, I really wanted out.
So Phfirt
went on without me, launching original animated shorts four months later. I'm glad for the guys who were happy with their deals, but also glad I didn't get sucked in. It would have been four very intense months of work, and after paying hired help, I would have ended up with next to no money and absolutely NO attachment to the project. Maybe Adam Pickelhauben wasn’t a jerk
after all. Maybe his deal-making was a subtle
warning as to what disasters lay
ahead - a web-lawyer's wink that the deck was marked.
Thanks
Adam. You're a swell lawyer, for the internet.
-Steve
